IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
STEVEN G. LADY,
NEAL GLASER MARINE, INC; ET AL,
OUTBOARD MARINE CORPORATION,
Doing Business As OMC, INC.,
doing business as OMCCC,
doing business as CHRIS CRAFT,
Appeal from the United States District Court
Southern District of Mississippi
September 26, 2000
Before KING, Chief Judge, GARWOOD and DeMOSS,
GARWOOD, Circuit Judge:
Plaintiff-appellant Steven G. Lady (Lady)
filed this suit in Mississippi state court against defendant-appellee Outboard
Marine Corporation (OMC), seeking recovery for losses he sustained in a
boating accident. OMC removed the case to federal court on the basis of
diversity jurisdiction. Following removal, OMC filed a motion for summary
judgment, arguing that the Federal Boat Safety Act, 46 U.S.C. §§
4301-4311 (FBSA), and Coast Guard regulatory action preempted Lady's state-law
tort claims. By the consent of both parties, the action was referred to
a Magistrate Judge for disposition. The Magistrate Judge granted OMC's
motion for summary judgment. Lady v. Outboard Marine Corp., 66 F.
Supp.2d 818 (S.D. Miss. 1999). Lady now appeals. We affirm.
Facts and Proceedings Below
On May 7, 1995, Lady was riding a personal
water craft, commonly known as a "jet ski," in Bayou La Croix, in Hancock
County, Mississippi. Richard Rychetsky (Rychetsky), one of Lady's friends,
was operating a motor boat to the rear portside of Lady's vessel. The two
vessels were traveling at approximately thirty to thirty-five miles per
hour within twenty feet of one another when Rychetsky blew his boat's horn.
Lady reacted to the horn by making a hard left turn, placing his jet ski
directly into the path of Rychetsky's boat. The vessels collided, causing
Lady to be thrown off of his jet ski and under Rychetsky's boat. While
in the water, Lady came into contact with the boat's moving propeller,
resulting in severe injuries to Lady including lacerations to his head,
the loss of one leg, and injury to the other.
On February 18, 1998, Lady filed this action
in Mississippi state court against OMC, the manufacturer of Rychetsky's
boat, and Neal Glaser Marine, Inc., the distributor of the boat, seeking
recovery under Mississippi tort law for the injuries and losses he sustained
as a result of the May 7, 1995 boating accident on Bayou La Croix.(1)
Lady alleged that OMC and Neal Glaser Marine were liable under Mississippi
law for negligence, breach of warranty, gross negligence, and design defect
for failing to equip Rychetsky's boat with a propeller guard.(2)
On April 7, 1998, OMC removed the action to federal court on the basis
of diversity jurisdiction. Lady later voluntarily dismissed his claims
against Neal Glaser Marine.
Following removal, the case was placed on
inactive status, pending the outcome of Lewis v. Brunswick Corp.,
107 F.3d 1494 (11th Cir. 1997), cert. granted, 118 S.Ct. 439 (1998),
in which the Supreme Court granted certiorari to consider the preemptive
effect of the FBSA and Coast Guard regulations on an action similar to
Lady's. After the Supreme Court heard oral argument in Lewis but
before the Court issued a decision, the parties in Lewis settled
and the Court dismissed the petition for certiorari. See Lewis v. Brunswick
Corp., 118 S.Ct. 1793 (1998). Following the Supreme Court's dismissal,
Lady's action was removed from inactive status. On September 9, 1998, OMC
moved for summary judgment, arguing that federal law preempted Lady's claims
against OMC-the same issue before the Court in Lewis. One month
later, Lady and OMC consented to a Magistrate Judge's conducting all proceedings
in the action, including the entry of final judgment. After a hearing on
OMC's motion for summary judgment, the Magistrate Judge granted the motion,
concluding that the FBSA and Coast Guard regulatory decisions preempted
Lady's claims. Lady timely appealed.
We review a judgment rendered by a Magistrate
Judge(3) just as we would a judgment rendered
by a district court. See Madison v. Parker, 104 F.3d 765, 767 (5th
Cir. 1997). We review a grant of summary judgment applying the same standard
as the court below was required to apply. See Dutcher v. Ingalls Shipbuilding,
53 F.3d 723, 725 (5th Cir. 1995). Summary judgment must be affirmed when
the non-moving party, in this case, Lady, has failed to demonstrate that
a material issue of fact is present. See Madison, 104 F.3d at 767.
Summary judgment evidence is viewed in the light most favorable to the
nonmovant, and questions of law are reviewed de novo. See id.
The Magistrate Judge's ruling that federal law preempts Lady's claims is
a legal determination that this Court reviews de novo. See Baker
v. Farmers Elec. Coop., Inc., 34 F.3d 274, 278 (5th Cir. 1994). We
may affirm the summary judgment on any basis raised below and supported
by the record. See Davis v. Scott, 157 F.3d 1003, 1005 (5th Cir.
1998); Davis v. Liberty Mut. Ins. Co., 525 F.2d 1204, 1207 (5th
Cir. 1976); see also 10A Charles Alan Wright et al., Federal Practice
and Procedure § 2716, at 290 (3d ed. 1998).
I Preemption by the FBSA and Coast Guard Regulation
Federal law generally preempts state law under
the Supremacy Clause whenever (1) Congress has expressly preempted state
action, (2) Congress has installed a sufficiently comprehensive regulatory
scheme in the area, thus removing the entire field from state realm, or
(3) state action would directly conflict with the force or purpose of federal
law. See Cipollone v. Liggett Group, 112 S.Ct. 2608, 2617 (1992);
v. General Elec. Co., 110 S.Ct. 2270, 2275 (1990); Hodges v. Delta
Airlines, Inc., 44 F.3d 334, 335 n.1 (5th Cir. 1995) (en banc).
As neither party suggests that the second type of preemption-field preemption-applies,
we need only address express and implied conflict preemption.
Whether federal law preempts Lady's state
common-law tort claims is an issue of first impression in this Court. Several
other courts, both state and federal, have considered the issue. However,
they have not reached a uniform conclusion. See generally Amy P.
Chiang, Note, The Federal Boat Safety Act of 1971 and Propeller Strike
Injuries: An Unexpected Exercise in Federal Preemption, 68 Fordham
L. Rev. 487 (1999). Nine courts have held that express preemption applies.
Carstensen v. Brunswick Corp., 49 F.3d 430, 431-32 (8th Cir. 1995);
v. Outboard Marine Corp., 915 F. Supp. 183, 186 (E.D. Cal. 1996); Davis
v. Brunswick Corp., 854 F. Supp. 1574, 1580 (N.D. Ga. 1994); Shield
v. Bayliner Marine Corp., 822 F. Supp. 81, 83 (D. Conn. 1993); Shields
v. Outboard Marine Corp., 776 F. Supp. 1579, 1581 (M.D. Ga. 1991);
v. Mercury Marine, Div. of Brunswick Corp., 773 F. Supp. 1012, 1016-17
(N.D. Ohio 1991); Ryan v. Brunswick Corp., 557 N.W.2d 541, 548-49
(Mich. 1997); Sprietsma v. Mercury Marine, 729 N.E.2d 45, 52-53
(Ill. App. Ct. 2000); Farner v. Brunswick Corp., 607 N.E.2d 562,
567-68 (Ill. App. Ct. 1993). Three courts have found implied preemption.
See Lewis, 107 F.3d at 1505-06; Davis, 854 F. Supp. at 1581-82;
Shields, 776 F. Supp. at 1582. Two courts have concluded that federal
law does not preempt state law in this context.
See Moore v. Brunswick
Bowling & Billiards Corp., 889 S.W.2d 246, 250-51 (Tex.), cert.
denied sub. nom., 115 S.Ct. 664 (1994); Ard v. Jensen,
996 S.W.2d 594, 599-600 (Mo. Ct. App. 1999).
Lady argues that the Magistrate Judge erred
in ruling that federal law preempts his Mississippi common-law tort claims
against OMC. He contends that, despite the FBSA's express preemption clause,
contained in 46 U.S.C. § 4306, and the Coast Guard's regulatory decisions,
his action against OMC is not precluded because preemption under section
4306 does not extend to his common-law tort claims and because the FBSA's
savings clause, 46 U.S.C. § 4311(g), preserves his action. OMC responds
that section 4306 and the Coast Guard's regulatory decisions both expressly
and impliedly preempt Lady's common-law tort claims, because subjecting
OMC to a damage award would result in varying state requirements for recreational
vessels, in direct contravention to Congress's intent to establish uniform
requirements for recreational vessels. We now weigh in on this close and
difficult issue and conclude that, although the FBSA and the Coast Guard's
regulatory decisions do not expressly preempt Lady's tort claims, implied
conflict preemption does preclude his action against OMC, because a state
rule requiring propeller guards on recreational vessels would frustrate
the Coast Guard's decision that recreational boats should not be required
to be equipped with propeller guards.
A The FBSA and Coast Guard Regulatory Decisions
Congress enacted the FBSA in 1971, in part,
"to improve boating safety by requiring manufacturers to provide safer
boats and boating equipment to the public through compliance with safety
standards to be promulgated by the Secretary of the Department in which
the Coast Guard is operating-presently the Secretary of Transportation."
S. Rep. No. 92-248 (1971), reprinted in 1971 U.S.C.C.A.N. 1333,
1333. A significant increase in the number of recreational boaters in the
United States and in the number of boating "accidents, deaths and injuries,"
at 1334, required "a coordinated national boating safety program."
at 1335. To implement this goal, the FBSA authorizes the Secretary of Transportation
(the Secretary) to prescribe regulations establishing minimum safety standards
for recreational boats. See 46 U.S.C. § 4302(4).
The Secretary has the option to delegate regulatory functions to a designated
agency that then operates under the Secretary's supervision. See
46 U.S.C. § 4303(a)(5). The Secretary
exercised that option and delegated to the Commandant of the United States
Coast Guard the duty of "[c]arry[ing] out the functions vested in the Secretary
by the . . . Federal Boat Safety Act of 1971 . . .." 49 C.F.R. § 1.46(n)(1).
Immediately after the FBSA took effect, the
Secretary began implementing a federal scheme of recreational boat safety
regulations. In the initial period of transition from a primarily state
law regime to a federal one, the Secretary, pursuant to 46 U.S.C. §
4305(6), exempted all state boat safety
laws "in effect on the effective date of the [FBSA]" from preemption under
46 U.S.C. § 4306. 36 Fed. Reg. 15764-65 (1971). Approximately one
year later, the Coast Guard issued a set of federal regulations governing
recreational boat design and performance. See 37 Fed. Reg. 15776-85
(1972). These regulations cover a broad spectrum, including personal flotation
devices, flotation requirements, and ventilation, fuel, and electrical
systems. See generally 33 C.F.R., subch. S. Thereafter, the Coast
Guard replaced the blanket exemption from preemption of state boat safety
law with a more limited one not at issue in this appeal. See 38
Fed. Reg. 6914-15 (1973).
Before promulgating a regulation, the Coast
Guard is required to consult with the National Boating Safety Advisory
Council (the Advisory Council)(7) on the
need for regulation. See 46 U.S.C. § 4302(c)(4). In 1988, the
Coast Guard directed the Advisory Council to examine the feasibility and
potential safety advantages and disadvantages of propeller guards on recreational
boats and to consider whether requirements mandating propeller guards in
the design and manufacture of recreational boats were appropriate. The
Advisory Council then appointed a Propeller Guard Subcommittee (the Subcommittee)
"to consider, review and assess available data concerning the nature and
incidence of recreational boating accidents in which persons in the water
are struck by propellers." National Boating Safety Advisory Board, Report
of the Propeller Guard Subcommittee 1 (1989). The Advisory Council also
asked the Subcommittee to consider, inter alia, whether "the Coast
Guard [should] move towards a federal requirement for some form of propeller
guard." Id. at app. A.(8)
Over a one-year period, the Subcommittee reviewed
material provided by the Coast Guard and held hearings on three occasions,
receiving information from a variety of individuals and groups interested
in the topic of propeller guards. See id. at 1-3. One of the issues
on which the Subcommittee received information was propeller guard litigation,
and the Subcommittee devoted a section of its report to the topic. See
id. at 4-6. The report details the legal theories of liability asserted
against boat manufacturers by propeller strike victims, including the failure
to equip boats with propeller guards, and the defenses raised by the manufacturers.
id. at 4-5. In this section, the Subcommittee notes that, at the time
of the hearings, the advocates for propeller guards were "petition[ing]
federal and state legislators and regulators to mandate propeller guards."
at 5. The Subcommittee's report further states that "[s]uch [a] mandate
would necessarily be predicated on the feasibility of guards and establish
prima facie manufacturer liability in having failed to provide them." Id.
Therefore, the Subcommittee considered feasibility as an important issue.
id. Manufacturers, however, remained "opposed to mandatory propeller
guards." Id. at 6.
The report later addresses the technical issues
posed by propeller guards(9). See id.
at 12-19. The Subcommittee found that, while propeller guards were "feasible
at idling and very low speeds," id. at 20, they adversely affected
boat operation at speeds greater than ten miles per hour, "requir[ing]
greatly increased power and fuel consumption to regain the lost speed."
at 21.(10) In addition, the Subcommittee
determined that propeller guards would not necessarily increase overall
boating safety, because they would increase the chance of contact between
a blunt object (the propeller guard) and a person in the water, thereby
substituting a decreased chance of a propeller strike injury for an increase
in the likelihood of a blunt trauma injury. See id. at 19-21.(11)
Therefore, the Subcommittee recommended unanimously that "[t]he U.S. Coast
Guard should take no regulatory action to require propeller guards." Id.
The Subcommittee's Chairman, Captain James
E. Getz, presented the report to the entire Advisory Council, which unanimously
"accept[ed] the report, adopt[ed] the recommendations of the subcommittee,
and discharge[d] the subcommittee as having completed its task." Minutes
of the 44th Meeting of the National Boating Advisory Council 19 (Nov. 6-7,
1989). The Advisory Council then forwarded the report and recommendations
to the Coast Guard. On February 1, 1990, the Coast Guard informed the Advisory
Council that it had adopted each of the Advisory Council's recommendations.
See Letter from Robert T. Nelson, Rear Admiral, U.S. Coast Guard, Chief,
Office of Navigation Safety and Waterway Services, to A. Newell Garden,
Chairman, National Boating Safety Advisory Council (Feb. 1, 1990). The
letter explains the Coast Guard's position on propeller guards as follows:
"The regulatory process is very structured
and stringent regarding justification. Available propeller guard accident
data do not support imposition of a regulation requiring propeller guards
on motorboats. Regulatory action is also limited by the many questions
about whether a universally acceptable propeller guard is available or
technically feasible in all modes of boat operation. Additionally, the
question of retrofitting millions of boats would certainly be a major economic
The Coast Guard will continue to collect and
analyze data for changes and trends; and will promote increase/improved
reporting as addressed in recommendation 2. The Coast Guard will also review
and retain any information made available regarding development and testing
of new propeller guarding devices or other information on the state of
the art." Id. at 1.
Accordingly, the Coast Guard decided not to
implement regulations requiring propeller guards on recreational boats.(12)
Neither, however, has the Coast Guard forbidden the installation of propeller
guards. It is against this backdrop of Coast Guard decision making that
we consider Lady's claims against OMC.
B Presumptions Regarding Preemption
At the outset, the parties dispute the here
important question of whether our analysis should begin with a presumption
that federal law does not preempt Lady's common-law tort claims against
OMC. Lady contends that, in areas traditionally regulated by states through
their police powers, a presumption that federal law does not supercede
such powers arises. Lady concludes that, because his claims primarily concern
safety and health, the presumption against preemption applies in this case.
Conversely, OMC asserts that Lady's action also bears upon general maritime
law, which is primarily of federal concern, and therefore a presumption
against preemption is not warranted in this context. To be sure, Lady's
tort action touches on safety and health-"matters that historically have
been areas of state jurisdiction." MacDonald v. Monsanto Co., 27
F.3d 1021, 1023 (5th Cir. 1994) (citing Hillsborough County v. Automated
Medical Labs., Inc., 105 S.Ct. 2371, 2376 (1985)); see Medtronic,
Inc. v. Lohr, 116 S.Ct. 2240, 2250 (1996). However, in United
States v. Locke, 120 S.Ct. 1135 (2000), the Supreme Court made clear
that "an 'assumption' of nonpre-emption is not triggered when the State
regulates in an area where there has been a history of significant federal
presence." Id. at 1147 (citations omitted). Locke considered
whether federal law preempted a series of regulations enacted by the State
of Washington in response to the Exxon Valdez oil spill; these regulations
addressed, inter alia, oil tanker operations and design, as well
as crew training and qualifications, and were established "to provide 'the
best achievable protection . . . from damages caused by the discharge of
oil.'" Id. at 1142 (quoting Wash. Rev. Code § 88.46.040(3)
(1994)). Although these tanker standards were promulgated to preserve the
health and safety of Washington's population and property, the Court nevertheless
concluded that, because Washington's regulations "b[ore] upon national
and international maritime commerce, . . . in this area there [wa]s no
beginning assumption that concurrent regulation by the State is a valid
exercise of its police powers." Id. at 1148.
Similarly, Lady's action, which alleges that
OMC designed a defective boat by failing to include a propeller guard,
relates not only to health and safety, but also to maritime activity-an
area traditionally within the purview of federal regulation. See Southern
Pac. Co. v. Jensen, 37 S.Ct. 524, 528 (1917) ("Congress has paramount
power to fix and determine the maritime law which shall prevail throughout
the country.") (citations omitted); see also Locke, 120 S.Ct. at
1148 ("Congress has legislated in the [area of maritime commerce] from
the earliest days of the Republic, creating an extensive federal statutory
and regulatory scheme.");
Kelly v. Washington, 58 S.Ct. 87, 89 (1937)
("The federal acts and regulations with respect to vessels on the navigable
waters of the United States are elaborate."); Mallard Bay Drilling,
Inc. v. Herman, 212 F.3d 898, 900-02 (5th Cir. 2000) (holding that
the Coast Guard had sole jurisdiction, to the exclusion of OSHA, over the
working conditions of seamen on barges in a navigable waterway within a
state's territorial waters); Exxon Corp. v. Chick Kam Choo, 817
F.2d 307, 316-18 (5th Cir. 1987), rev'd on other grounds, 108 S.Ct.
1684 (1988); cf. Consolidated Cigar Corp. v. Reilly, ___ F.3d ____,
2000 WL 960526, at * 3 (1st Cir. July 17, 2000) (deciding that a presumption
against preemption does arise when considering state regulations on the
sale, promotion, and labeling of tobacco products, by contrasting federal
involvement in tobacco products with that in maritime activity). Admittedly,
Lady's claims do not involve a tanker engaged in maritime commerce. However,
the Court in Foremost Insurance Co. v. Richardson, 102 S.Ct. 2654
(1982), held that a collision between two pleasure craft on navigable waters
had a sufficient nexus to traditional maritime activity to fall within
the admiralty jurisdiction of the federal courts(13).
id. at 2658-59. Accordingly, any distinction between recreational vessels
and tankers is of little significance, as the national interest in vessels
operating on navigable waters of the United States encompasses both. See
id. at 2659.
The FBSA and the regulations prescribed pursuant
to the FBSA "appl[y] to a recreational vehicle and associated equipment
carried in the vessel on waters subject to the jurisdiction of the United
States . . . and, for a vessel owned in the United States, on the high
seas." 46 U.S.C. § 4301(a); see S. Rep. No. 92-248 (1971),
in 1971 U.S.C.C.A.N. 1333, 1338 ("General jurisdictional applicability
[of the FBSA] is to vessels within the historic federal maritime jurisdiction-the
navigable waters of the United States, certain internal waters which are
in the exclusive or concurrent jurisdiction of the United States, and extraterritorial
applicability to vessels owned in the United States."). Lady does not argue
that Rychetsky's boat was not a "recreational vehicle" or a vessel, nor
does Lady contend that the waterway where the boating accident occurred,
Bayou La Croix, is not a navigable water "subject to the jurisdiction of
the United States." 46 U.S.C. § 4301(a). Therefore, the design and
manufacture of Rychetsky's boat is subject to the FBSA and the regulatory
decisions promulgated under the FBSA. Because a state common-law rule requiring
OMC to equip its boats with propeller guards implicates federal concerns
at least as much state concerns, we cannot say that the state's interests
predominate. Therefore, in this area where the proposed state rule at issue
bears upon an area traditionally regulated by the federal government, a
presumption against preemption does not guide our analysis of whether federal
law precludes Lady's common-law tort claims against OMC. See Locke,
120 S.Ct. at 1147-48; see also CSX Transp., Inc. v. City of Plymouth,
92 F. Supp.2d 643, 648-49 (E.D. Mich. 2000) (holding, under Locke's
principles, that, given Congress's well-established power to regulate the
railroad industry, a presumption against preemption does not arise in deciding
whether a state statute was preempted by the Federal Railway Safety Act).
C Express Preemption
We now address whether the FBSA and the Coast
Guard's regulations expressly preempt Lady's state common-law tort action
against OMC. OMC contends that Lady's claims fall within the reach of the
FBSA's express preemption clause, which provides:
"Unless permitted by the Secretary under section
4305 of this title, a State or political subdivision of a State may not
establish, continue in effect, or enforce a law or regulation establishing
a recreational vessel or associated equipment performance or other safety
standard or imposing a requirement for associated equipment (except insofar
as the State or political subdivision may, in the absence of the Secretary's
disapproval, regulate the carrying or use of marine safety articles to
meet uniquely hazardous conditions or circumstances within the State) that
is not identical to a regulation prescribed under section 4302 of this
title." 46 U.S.C. § 4306.(14)
In OMC's view, the Coast Guard's 1990 decision
not to require propeller guards constitutes a "regulation prescribed under
section 4302," which preempts state laws or regulations. OMC contends that
Lady's action, if successful, would result in a state common-law regulation
requiring propeller guards on recreational boats, which would not be identical
to and would actually conflict with the Coast Guard's decision that propeller
guards should not be required. Thus, OMC concludes that Lady's claims are
preempted by section 4306.
Lady responds that the section 4306's phrase
"law or regulation" does not include the common law, because section 4306
makes no mention of "common law," and thus refers only to positive enactments
of law at the state or local level. Accordingly, Lady concludes that Congress's
failure to specify "common law" in section 4306 evinces an intent not to
preempt common-law claims such as his. Moreover, Lady contends that the
FBSA's savings clause, 46 U.S.C. § 4311(g)(15),
preserves his claims against OMC, despite the preemption clause and regulatory
decisions concerning recreational vessels.
In determining the scope of preemption under
section 4306, we focus on the purpose of Congress. See Medtronic,
116 S.Ct. at 2250 (citations omitted). Congressional intent is revealed
primarily through the text of the preemption statute and the statutory
framework surrounding it. See id. at 2250-51 (citation omitted);
also CSX Transp., Inc. v. Easterwood, 113 S.Ct. 1732, 1737 (1993) ("If
the statute contains an express pre-emption clause, the task of statutory
construction must in the first instance focus on the plain wording of the
clause, which necessarily contains the best evidence of Congress' pre-emptive
intent."). "Also relevant, however, is the 'structure and purpose of the
statute as a whole,' as revealed not only in the text, but through the
reviewing court's reasoned understanding of the way in which Congress intended
the statute and its surrounding regulatory scheme to affect business, consumers,
and the law." Medtronic, 116 S.Ct. at 2251. By its terms, section
4306 preempts state laws or regulations that are not identical to regulations
promulgated under the FBSA, unless exempted from by preemption by the Secretary
under 46 U.S.C. § 4305 or directed to remedy uniquely local dangers
(subject to the Secretary's disapproval). Because the FBSA does not define
the section 4306's phrase "law or regulation", we now consider whether
it includes state common-law tort claims.
Although section 4306 does not specifically
enumerate "common law" as being preempted, the Supreme Court, in other
contexts, has interpreted language similar to section 4306's to include
state common-law tort actions. See, e.g., Medtronic, 116 S.Ct. at
2260 (considering the term "requirement" in the Medical Devices Act, 21
U.S.C. § 360k(a)) (Breyer, J., concurring in part and concurring in
judgment); id. at 2263 (same) (O'Connor, J., joined by Rehnquist,
C.J., and Scalia, and Thomas, JJ., concurring in part and dissenting in
part) (same); Morales v. Trans World Airlines, Inc. 112 S.Ct. 2031,
2039 (1992) (concluding that a state common-law claim counts as "any law,
rule, regulation, standard, or other provision having the force and effect
of law" for purposes of the Airline Deregulation Act); Cipollone,
112 S.Ct. at 2620 (holding that "requirements or prohibitions . . . under
State law," contained in the Public Health Cigarette Smoking Act of 1969,
made no distinction between positive legal enactments and the common law)
(plurality opinion); id. at 2634 (same) (Scalia, J., joined by Thomas,
J., concurring in judgment in part and dissenting in part);
113 S.Ct. at 1737 (interpreting the phrase "state 'law, rule, regulation,
order, or standard relating to railroad safety'") (quoting 45 U.S.C. §
434); see also MacDonald, 27 F.3d at 1025 ("The MacDonalds argue,
however, that state common law judgments are not 'requirements': the liable
party is not 'required' to change his label by a damage award, the argument
goes, but may simply pay the judgment and leave the label as it is. We
think this argument is sophistry."). This past term, the Court, in Geier
v. American Honda Motor Co., Inc., 120 S.Ct. 1913 (2000), considered
whether the Motor Vehicle Safety Act's express preemption provision(16)
preempted a state tort action based on the failure to equip an automobile
with a driver's side airbag. See id. at 1918. Although acknowledging
that the term "requirement" included common-law tort actions in Medtronic,
the Court stated that "[w]e need not determine the precise significance
of the use of the word 'standard,' rather than 'requirement,' . . . for
the [Motor Vehicle Safety] Act contains another provision, which resolves
the disagreement." Id. This provision, a savings clause(17),
"assumes that there are some significant number of common-law liability
cases to save." Id. In order to give effect to the savings clause,
the Court interpreted "standard" so as to exclude common-law tort actions.
id. Otherwise, under a "broad reading of the pre-emption clause little,
if any, potential 'liability at common law' would remain[,] [a]nd few,
if any, state tort actions would remain for the saving clause to save."
United Airlines, Inc. v. Mesa Airlines, Inc., ___ F.3d ____, 2000 WL
898694, at *2 (7th Cir. July 5, 2000) ("A broad clause saving common-law
remedies might overcome the understanding that judgments in tort suits
should be treated like state laws and regulations to the extent that they
have the same practical effect as laws and regulations . . ..") (citations
Similar to the Motor Vehicle Safety Act, the
FBSA also contains a savings clause, which provides that "[c]ompliance
with this chapter or standards, regulations, or orders prescribed under
this chapter does not relieve a person from liability at common law or
under State law." 46 U.S.C. § 4311(g).(18)
As indicated by Geier, the presence of the savings clause precludes
a broad reading of the express preemption provision of section 4306. See
also Freytag v. Commissioner of Internal Revenue, 111 S.Ct. 2631, 2638
(1991) ("Our cases consistently have expressed 'a deep reluctance to interpret
a statutory provision so as to render superfluous other provisions in the
same enactment.'") (quoting Pennsylvania Dept. of Pub. Welfare v. Davenport,
110 S.Ct. 2126, 2133 (1990)).(19) We accordingly
are unable to conclude that section 4306 preempts more than positive enactments
of law by a state or local legislature or administrative agency or official
and extends to expressly preempt Lady's common-law tort action against
D Implied Preemption
Our conclusion that Lady's action is not expressly
preempted does not "foreclose any possibility of implied pre-emption."
Corp. v. Myrick, 115 S.Ct. 1483, 1488 (1995); see Geier, 120
S.Ct. at 1919 (stating that "the savings clause (like the express pre-emption
provision) [of the National Traffic and Motor Vehicle Safety Act] does
not bar the ordinary working of conflict pre-emption principles"); Freightliner,
115 S.Ct. at 1488 ("The fact that an express definition of the pre-emptive
reach of a statute 'implies'-i.e., supports a reasonable inference-that
Congress did not intend to pre-empt other matters does not mean that the
express clause entirely forecloses any possibility of implied pre-emption.").
Implied conflict preemption "occurs when compliance with both state and
federal law is impossible, or when the state law stands as an obstacle
to the accomplishment and execution of the full purpose and objective of
Congress." Locke, 120 S.Ct. at 1148 (internal quotations and citations
omitted). As compliance with both a state common-law rule requiring a propeller
guard and the Coast Guard's decision not to require propeller guards is
not impossible, we address whether a common-law rule requiring a propeller
guard would disrupt the results Congress sought to achieve with the enactment
of the FBSA.
OMC argues that Congress enacted the FBSA
to create a uniform system of requirements for recreational vessels. OMC
maintains that the Coast Guard's decision not to require propeller guards
amounts to a determination that such a requirement is not appropriate,
thus leaving manufacturers with the flexibility to choose an appropriate
response to the safety issues presented by boat propellers. OMC contends
that to allow common-law claims to impose a rule requiring propeller guards
would eviscerate the Coast Guard's decision that such a requirement should
not be imposed and destroy the flexible approach adopted by the Coast Guard.
In response, Lady contends that the Coast
Guard's decision neither to require nor forbid propeller guards does not
create a rule subject to uniform application. Lady asserts that a common-law
claim that may impose a rule of boat and equipment safety standards is
permissible, as long as the Coast Guard has not promulgated a regulation
that conflicts with the common-law requirement. Accordingly, Lady argues,
the Coast Guard's decision not to impose a safety standard on propellers
leaves room for state common-law to impose a standard on the matter. In
support of this position, Lady relies on Freightliner, in which
the Court considered whether the absence of a federal standard on a safety
matter implicitly preempted a state common-law action imposing such a standard.
In Freightliner, the Supreme Court
considered whether common-law claims based on the failure to install anti-lock
braking systems on tractor-trailers were expressly or impliedly preempted
by the Motor Vehicle Safety Act. See Freightliner, 115 S.Ct. at
1486-87. The defendant manufacturers argued that such claims were preempted,
because the relevant agency had indicated an intent to regulate braking
matters by prescribing a regulation on the matter. See id. at 1486.
This regulation was later struck down by a court of appeals, but the defendants
in Freightliner maintained that it still had preemptive effect,
because it demonstrated an intent to forbid state regulation of braking
systems. See id. at 1487.
The Court rejected the manufacturers' argument.
No federal standard on the stopping distances or vehicle stability for
trucks or trailers had been prescribed, and the Court determined that the
absence of regulation did not constitute regulation, because "there is
no evidence that [the Secretary] decided that trucks and trailers should
be free from all state regulation of stopping distances and vehicle stability."
at 1487. "[T]he lack of federal regulation did not result from an affirmative
decision of agency officials to refrain from regulating air brakes." Id.
In the absence of federal action, the Court concluded that under the Motor
Vehicle Safety Act the "States remain free to 'establish, or to continue
in effect,' their own safety standards concerning those 'aspects of performance.'"
(quoting 15 U.S.C. § 1392(d)). Therefore, the Court held that "[a]
finding of liability [based on the failure to install anti-lock brakes]
would undermine no federal objectives or purposes with respect to [anti-lock
braking] devices, since none exist."
Id. at 1488. Accordingly, implied
conflict preemption did not apply. In contrast to
"the lack of federal regulation did not result from an affirmative decision
by agency officials to refrain from regulating,"
id. at 1487, the
lack of a regulation mandating propeller guards on recreational boats came
after the Coast Guard studied the matter and affirmatively determined that
requiring propeller guards was substantively inappropriate. Therefore,
Freightliner's teachings do not preclude implied preemption in the
In Geier, the Court again encountered
the Motor Vehicle Safety Act-this time to decide whether a safety standard
promulgated by the Secretary, FMVSS 208, preempted a common-law action
based on the failure to install a driver's side airbag. FMVSS 208 gave
vehicle manufacturers a choice as to whether or not to install airbags
and pursued a gradual phase-in of airbag and passive restraint systems.
Geier, 120 S.Ct. at 1917, 1924; see also id. at 1922 (The Department
of Transportation's "comments, which accompanied the promulgation of FMVSS
208, make clear that the standard deliberately provided the manufacturer
with a range of choices among different passive restraint devices."). After
concluding that the Motor Vehicle Safety Act did not expressly preempt
Geier's claims, the Court addressed implied preemption. See id.
at 1919-28. The Court noted that the rule of state tort law Geier sought
to impose by her lawsuit "would have required manufacturers of all similar
cars to install airbags rather than other passive restraint systems, such
as automatic belts or passive interiors." Id. at 1925; see id.
("[Geier's lawsuit] would have required all manufacturers to have installed
airbags in respect to the entire District-of-Columbia-related portion of
their 1987 new car fleet, even though FMVSS 208 at that time required only
that 10% of a manufacturer's nationwide fleet be equipped with any passive
restraint device at all."). Therefore, the Court determined that Geier's
tort claims "would have presented an obstacle to the variety and mix of
devices that the federal regulation sought . . . [and] also would have
stood as an obstacle to the gradual passive restraint phase-in that the
federal regulation deliberately imposed." Id. Because the rule of
law for which Geier pursued through her tort action "would have stood 'as
an obstacle to the accomplishment and execution of' the[se] important means-related
federal objectives . . ., it is pre-empted." Id (quoting Hines
v. Davidowitz, 61 S.Ct. 399, 404 (1941)).
In Geier, the Court held that FMVSS
208 was to be given pre-emptive effect over conflicting state laws. See
id. at 1928. OMC contends that we should apply this rule to preempt
Lady's action. However, unlike the situation in Geier, OMC's contention
does not rest upon a prescribed safety standard, but rather a decision
not to prescribe a standard, in which the Coast Guard, after considering
whether to require propeller guards, decided that "[t]he U.S. Coast Guard
should take no regulatory action to require propeller guards." Letter from
Robert T. Nelson, Rear Admiral, U.S. Coast Guard, Chief, Office of Navigation
Safety and Waterway Services, to A. Newell Garden, Chairman, National Boating
Safety Advisory Council (Feb. 1, 1990). An agency decision not to regulate
does not always, or perhaps even usually, carry a preemptive effect. See
Freightliner, 115 S.Ct. at 1488; Puerto Rico Dept. of Consumer Affairsv.
Isla Petroleum Corp., 108 S.Ct. 1350, 1355 (1988). Yet, "a federal
decision to forgo regulation in a given area may imply an authoritative
federal determination that the area is best left unregulated, and
in that event would have as much pre-emptive force as a decision to
regulate." Arkansas Elec. Coop. Corp. v. Arkansas Pub. Serv. Comm'n,
103 S.Ct. 1905, 1912 (1983) (citations omitted). This is so where the "failure
of . . . federal officials affirmatively to exercise their full authority
takes on the character of a ruling that no such regulation is appropriate
or approved pursuant to the policy of the statute, States are not permitted
to use their police power to enact such a legislation." Ray v. Atlantic
Richfield Co., 98 S.Ct. 988, 1004-05 (1978) (quotations and citations
In Ray, the Court considered whether
federal law preempted the State of Washington's enactment of a law "exclud[ing]
from Puget Sound under any circumstances any tanker in excess of 125,000
DWT [or deadweight tons]." Id. at 1002. Because section 1222(b)
of the Ports and Waterways Safety Act (PWSA) prohibited a state from imposing
higher safety standards than those prescribed by the Secretary of Transportation
under Title I of the PWSA, the Court held that Washington's size limitation
for vessels in Puget Sound was unenforceable. See id. at 1003. The
Court went further, stating that "even without § 1222(b), we would
be reluctant to sustain the [Washington's] Tanker Law's absolute ban on
tankers larger than 125,000 DWT." Id. at 1004. The Court found this
to be appropriate in light of the Coast Guard's local navigation rule for
the Rosario Strait. See id. at 1004; see also id. at 1007
("The Coast Guard's unwritten 'local navigation rule' . . . prohibits
passage of more than one 70,000 DWT vessel through Rosario Strait at any
given time . . ..") (Marshall, J., dissenting, joined by Brennan and Rehnquist,
JJ.). The Secretary of Transportation, through the Coast Guard, had issued
"the Puget Sound Vessel Traffic System containing general rules, communication
rules, vessel movement reporting requirements, a traffic separation scheme,
special rules for ship movement in Rosario Strait, descriptions and geographic
coordinates of the separation zones and traffic lanes, and a specification
for precautionary areas and reporting points." Id. at 1001. The
local navigation rule governing traffic in the Rosario Strait "prohibited
the passage of more than one 70,000 DWT vessel through Rosario Strait in
either direction at any given time . . . [and] [d]uring the periods of
bad weather, [reduced] the size limitation . . . to approximately 40,000
DWT." Id. (internal quotations and citations omitted). Because of
this prescription of a narrow limit on vessels in the Rosario Strait, the
Secretary of Transportation's failure to promulgate a ban on the operations
of oil tanker in excess of 125,000 DWT in Puget Sound constituted a decision
that no such regulation is appropriate pursuant to the policy of the PWSA.
id. at 1004-05; see also id. at 1003 ("[I]t appears sufficiently
clear that federal authorities have indeed dealt with the issue of size
and have determined whether and in what circumstances tanker size is to
limit navigation in Puget Sound. The [Washington] Tanker Law purports to
impose a general ban on large tankers, but the Secretary's response has
been a much more limited one."). In Locke, the Supreme Court defined
the relevant inquiry in Ray "as whether the Coast Guard promulgated
its own requirement on the subject or has decided that no such requirement
should be imposed at all." Locke, 120 S.Ct. at 1148 (citations omitted).(20)
Although the issue is an extremely close one, we conclude that the Coast
Guard's decision not to require propeller guards on recreational vessels
takes on a similar character.
In refusing to require propeller guards, the
Coast Guard stated as follows:
"Available propeller guard accident data do
not support imposition of a regulation requiring propeller guards on motorboats.
Regulatory action is also limited by the many questions about whether a
universally acceptable propeller guard is available or technically feasible
in all modes of boat operation." Letter from Robert T. Nelson, Rear Admiral,
U.S. Coast Guard, Chief, Office of Navigation Safety and Waterway Services,
to A. Newell Garden, Chairman, National Boating Safety Advisory Council
(Feb. 1, 1990).
After the Coast Guard studied the need for
mandating propeller guards on recreational vessels, it decided that, in
the absence of more information on propeller strike accidents, such a requirement
was not warranted, choosing instead to leave manufacturers with the option
of whether or not to attach a propeller guard and, if so, what type. A
damage award in favor of Lady would effectively require boat manufacturers
to install propeller guards, in direct contravention to the Coast Guard's
policy against mandating such a device in favor of affording manufacturers
flexibility in the matter. See San Diego Building Trades Council v.
Garmon, 79 S.Ct. 773, 780 (1959) ("[State] regulation can be as effectively
exerted through an award of damages as through some form of preventive
relief. The obligation to pay compensation can be, indeed is designed to
be, a potent method of governing conduct and controlling policy."); MacDonald,
27 F.3d at 1025 ("If plaintiffs could recover large damage awards because
the herbicide was improperly labeled under state law, the undeniable practical
effect would be that state law requires additional labeling standards
not mandated by [federal law]."); see also Lewis, 107 F.3d at 1505;
49 F.3d at 432 (both holding that a product liability claim against a boat
manufacturer, like Lady's, seeks to impose a propeller guard requirement).
Accordingly, the rule of law sought to be imposed by Lady would present
an obstacle to and frustrate the flexible approach towards propeller guards
adopted by the Coast Guard. See Geier, 120 S.Ct. at 1925. Therefore,
Lady's action is impliedly preempted by the Coast Guard's considered decision
that, on the merits of the matter, imposing a requirement for propeller
guards was substantively inappropriate. See Locke, 120 S.Ct. at
1148 (stating that regulations, in certain contexts, may "be given pre-emptive
effect over conflicting state laws").(21)
We do not hold that simply because the Coast
Guard has not acted on a safety matter that state action is precluded.
Rather, where the Coast Guard has been presented with an issue, studied
it, and affirmatively decided as a substantive matter that it was not appropriate
to impose a requirement, that decision takes on the character of a regulation
and the FBSA's objective of national uniformity mandates that state law
not provide a result different than the Coast Guard's. For example, if
Lady's state common-law tort action against OMC concerned a manufacturing
or design issue never presented to or considered by the Coast Guard, implied
preemption would not apply, because there would be no federal action to
be contravened by a successful tort claim. Although this dichotomy in analyzing
the preemption of state common-law claims under the FBSA and Coast Guard
regulatory decisions will not necessarily lead to complete nation-wide
uniformity in the rules governing the manufacturing and design of recreational
vessels, the goal for uniformity, as indicated in the FBSA's preemption
clause, 46 U.S.C. § 4306, and the Coast Guard's regulations, must
be balanced with Congress's willingness to accept some state action, as
evinced in the FBSA's savings clause, 46 U.S.C. § 4311(g).(22)
Lady's claims, however, fall on the side of the dichotomy where the Coast
Guard has studied a matter and affirmatively decided that imposing a requirement
was substantively inappropriate.
Thus, we conclude that, at least in the instant
maritime context where the federal interest and presence has traditionally
been so significant and there is no presumption against preemption, implied
preemption precludes Lady's action against OMC.(23)
For the reasons stated, the judgement of the
district court is
1. In a separate action,
Lady settled his claims against Rychetsky.
2. Lady's pleadings also
alleged that the boat's throttle was defective; however, Lady later voluntarily
dismissed this claim.
3. OMC and Lady executed
written consent to proceed before the Magistrate Judge, pursuant to 28
U.S.C. § 636(c) and Fed. R. Civ. P. 73. In accordance with 28 U.S.C.
§ 636(c)(3), this Court is the appropriate forum for appellate review
of the final judgment entered by the Magistrate Judge. See Oliver v.
Collins, 904 F.2d 278, 279-80 (5th Cir. 1990).
4. 46 U.S.C. § 4302
"(a) The Secretary may prescribe regulations-
(1) establishing minimum safety standards
for recreational vessels and associated equipment, and establishing procedures
and tests to measure conformance with those standards, with each standard-
(A) meeting the need for recreational vessel
(B) being stated, insofar as practicable,
in terms of performance;
(2) requiring the installation, carrying,
or use of associated equipment (including fuel systems, ventilation systems,
electrical systems, sound-producing devices, firefighting equipment, lifesaving
devices, signaling devices, ground tackle, life- and grab-rails, and navigational
equipment) on recreational vessels and classes of recreational vessels
subject to this chapter, and prohibiting the installation, carrying, or
use of associated equipment that does not conform with safety standards
established under this section; and
(3) requiring or permitting the display of
seals, labels, plates, insignia, or other devices for certifying or evidencing
compliance with safety regulations and standards of the United States Government
for recreational vessels and associated equipment.
(b) Each regulation prescribed under this
section shall specify an effective date that is not earlier than 180 days
from the date the regulation was published, unless the Secretary finds
that there exists a recreational vessel safety hazard so critical as to
require an earlier effective date. However, this period may not be more
than 24 months for cases involving, in the discretion of the Secretary,
major product design, retooling, or major changes in the manufacturing
(c) In prescribing regulations under this
section, the Secretary shall, among other things-
(1) consider the need for and the extent to
which the regulations will contribute to recreational vessel safety;
(2) consider relevant available recreational
vessel safety standards, statistics, and data, including public and private
research, development, testing, and evaluation;
(3) not compel substantial alteration of a
recreational vessel or item of associated equipment that is in existence,
or the construction or manufacture of which is begun before the effective
date of the regulation, but subject to that limitation may require compliance
or performance, to avoid a substantial risk of personal injury to the public,
that the Secretary considers appropriate in relation to the degree of hazard
that the compliance will correct; and
(4) consult with the National Boating Safety
Advisory Council established under section 13110 of this title about the
considerations referred to in clauses (1)-(3) of this subsection.
(d) Section 8903 of this title does not apply
to a vessel being operated for bona fide dealer demonstrations provided
without fee to business invitees. However, if on the basis of substantial
evidence, the Secretary decides under this section that requiring vessels
so operated to be under the control of licensed individuals is necessary
for boating safety, then the Secretary may prescribe regulations requiring
the licensing of individuals controlling these vessels in the same manner
as provided in chapter 89 of this title for individuals in control of vessels
carrying passengers for hire."
5. 46 U.S.C. § 4303(a)
"Subject to regulations, supervision, and
reviews that the Secretary may prescribe, the Secretary may delegate to
a person, private or public agency, or organization, or to an office or
employee under the supervision of that person or agency, any work, business,
or function related to the testing, inspection and examination necessary
for compliance enforcement and for the development of data to enable the
Secretary to prescribe regulations under section 4302 of this title."
6. 46 U.S.C. § 4305
provides that "[i]f the Secretary considers that recreational vessel safety
will not be adversely affected, the Secretary may issue an exemption from
this chapter or a regulation prescribed under this chapter."
7. The Advisory Council
is a twenty-one member council, consisting of three groups of seven members.
Each member of the council is appointed by the Secretary and is considered
to have "particular expertise, knowledge, and experience in recreational
boating safety." 46 U.S.C. § 13110(a). Section 13110(b) specifies
the composition of the Advisory Council as follows:
"(b)(1) The membership of the Council shall
(A) 7 representatives of State officials responsible
for State boating safety programs;
(B) 7 representatives of recreational vessel
manufacturers and associated equipment manufacturers; and
(C) 7 representatives of national recreational
boating organizations and from the general public, at least 5 of who shall
be representatives of national recreational boating organizations." 46
U.S.C. § 13110(b).
8. The Advisory Council's
charge to the Subcommittee reads in full:
"* Review the available data on the prevention
of propeller-strike accidents and the Coast Guard study of various methods
of shrouding propellers to prevent contact with a person in the water.
* Assess the arguments for and against some
form of mechanical guard to protect against propeller strikes reflecting
the positions of state boating law administrators, the recreational boating
industry, and the boating public.
* Among points to be considered:
b. is there a trend toward more or fewer such
what is the incidence of such accidents?
what are the possible solutions and their advantages/disadvantages?
how is this problem being addressed in other
what would be the direct costs and indirect costs
(fuel economy, maintenance, etc.) of mechanical solutions?
can the risks be addressed by education?
should the Coast Guard move towards a federal
requirement for some form of propeller guard?
assess the potential for propeller equipped with
each of several propeller guard designs to cause injury. How much has the
propeller guard reduced the injury potential compared to the injury potential
of the same propeller operating in an unguarded manner?
should only new boats and motors be equipped
with propeller guards, or should all boats eventually be equipped with
what is the practical boat length limit beyond
which propeller guards would not be required? [A]re there other parameters
which would dictate upper limits for guard installation?" Id.
9. The report notes that,
although numerous variations of propeller guards have been developed, they
essentially take one of three configurations: (1) a ring band guard; (2)
a mask guard; and (3) the Kort nozzle. See id. at 12-13. A ring
band guard consists of a shell "secured to the submerged portion of an
outboard motor or stern drive unit and within which the propeller revolves."
at 12. A mask guard involves "surrounding the propeller like a fan cage
or catcher's mask, constructed of wire mesh, bars or wires."
at 13. A Kort nozzle, used mainly on tug boats and large vessels, shrouds
the propeller in a tunnel or tube and with the installation of vanes can
direct the flow of water and prevent the entry of body parts.
at 13, 15. The Subcommittee examined ring band and mask guards, but not
nozzle guards, as none suitable for recreational vessels was brought to
the attention of the Subcommittee. See id. at 15. Moreover, "[n]o
guard device suitable for inboard engine drive propellers on displacement
or planing motor boats, or on auxiliary sail boats was presented." Id.
A concern raised with regard to installing the ring band and mask guards
was an increase in "the total area of a possible underwater impact." Id.
10. The Subcommittee's
report also states that:
"[B]oats and motors should be designed to
incorporate technologically feasible safety features to avoid or minimize
the consequences of inexperienced or negligent operation, without at the
same time (a) creating some other hazard, (b) materially interfering with
normal operations, or (c) being at economic costs disproportionate to the
Proponents [of propeller guards] assert that
propeller guard technology and/or availability meets the foregoing criteria
and that guards should be mandated. The Subcommittee does not agree . .
.." Id. at 20.
11. The Subcommittee noted
"Injuries/fatalities caused by underwater
impacts result from a person coming into contact with the propeller or
any part of the propulsion unit (i.e., lower unit, skeg, torpedo, anti-ventilation
plate, etc.) and even the boat itself. Currently reported accidents make
it obvious that all such components are involved in the total picture,
and that the propeller itself is the sole factor in only a minority of
impacts. The development and use of devices such as 'propeller guards'
can, therefore, be counter-productive and create new hazards of equal or
 Operator error is clearly a significant
factor in the vast majority of underwater impacts which result in injuries/fatalities.
Mandatory equipment requirements could be expected to have only a negligible
impact on this problem. The most rational approach to the problem is to
educate boaters, especially operators. They must be made to understand
the abilities and limitations of their equipment. They must be aware of
and understand the hazards their boat can cause to people in the water.
Above all, they must be made to understand the consequences of careless
or negligent operation of their watercraft, and how they, as boat operators,
can act to prevent accidents.
 Although the controversy which currently
surrounds the issue of propeller guarding is, by its very nature, highly
emotional and has attracted a great deal of publicity, there are no indications
that there is a generic or universal solution currently available or foreseeable
in the future. The boating public must not be misled into thinking there
is a 'safe' device which would eliminate or significantly reduce such injuries
or fatalities." Id. at 23-24.
12. The Coast Guard has
continued to study various proposals to prevent propeller-related injuries.
In 1995, the Coast Guard issued an Advance Notice of Proposed Rulemaking
(ANPRM) requesting comment on "the public's present feelings about the
use of propeller guards . . . on these vessels." 60 Fed. Reg. 25191 (1995).
In 1996, the Coast Guard issued an ANPRM "to gather current, specific,
and accurate information about the injuries involving propeller strikes
and rented boats." 61 Fed. Reg. 13123 (1996). And, in 1997, the Coast Guard
requested "comments on the effectiveness of specific devices and interventions
which have been suggested for reducing the number of recreational boating
accidents involving rented power boats in which individuals are injured
by the propeller." 62 Fed. Reg. 22991 (1997). Because this request received
so few responses, the Coast Guard extended the period for comments. See
62 Fed. Reg. 44507 (1997). To date, the rulemaking remains open, and the
Coast Guard is still considering what action, if any, to take regarding
propeller guards. See 64 Fed. Reg. 21566 (1999).
13. "The judicial Power
[of the United States] shall extend . . . to all Cases of admiralty and
maritime Jurisdiction . . .." U.S. Const. art. III, § 2.
14. The legislative history
explains the preemption clause as follows:
"This section [46 U.S.C. § 4306] provides
for federal preemption in the issuance of boat and equipment safety standards.
This conforms to the long history of preemption in maritime safety matters
and is founded on the need for uniformity applicable to vessels moving
in interstate commerce. In this case it also assures that manufacture for
the domestic trade will not involve compliance with widely varying local
requirements. At the same time, it was recognized that there may be serious
hazards which are unique to a particular locale and which would justify
variances at least with regard to the carriage or use of marine safety
articles on boats. Therefore, the section does permit individual States
to impose requirements with respect to carrying or using marine safety
articles which go beyond the federal requirements when necessary to meet
uniquely hazardous local conditions or circumstances. A right of disapproval,
however, is reserved to the Secretary to insure that indiscriminate use
of state authority does not seriously impinge on the basic need for uniformity.
The section does not preempt state law or
regulation directed at safe boat operation and use, which was felt to be
appropriately within the purview of state or local concern." S. Rep. No.
92-248 (1971), reprinted in 1971 U.S.C.C.A.N. 1333, 1341.
15. 46 U.S.C. § 4311(g)
states that "[c]ompliance with this chapter or standard, regulations, or
orders prescribed under this chapter does not relieve a person from liability
at common law or under State law."
16. The provision at issue
in Geier reads as follows:
"Whenever a Federal motor vehicle safety standard
established under this subchapter is in effect, no State or political subdivision
of a State shall have any authority either to establish, or to continue
in effect, with respect to any motor vehicle or item of motor vehicle equipment[,]
any safety standard applicable to the same aspect of such vehicle or item
of equipment which is not identical to the Federal standard." 15 U.S.C.
17. The Motor Vehicle
Safety Act's savings clause provides that "[c]ompliance with" a federal
motor vehicle safety standard "does not exempt any person from any liability
under common law." 15 U.S.C. § 1397(k) (1988). Section 1397(k) is
now codified with some changes at 49 U.S.C. § 30103(e).
18. The legislative history
explains the savings clause as follows:
"This section is a Committee amendment and
is intended to clarify that compliance with the Act or standards, regulations,
or orders promulgated thereunder, does not relieve any person from liability
at common law or under State law. The purpose of the section is to assure
that in a product liability suit mere compliance by a manufacturer with
the minimum standards promulgated under the Act will not be a complete
defense to liability. Of course, depending on the rules of evidence of
the particular judicial forum, such compliance may or may not be admissible
for evidentiary value." S. Rep. No. 92-248 (1971), reprinted in 1971
U.S.C.C.A.N. 1333, 1352.
19. A recent decision
of the Tenth Circuit, albeit concerning a different act's preemption and
savings clauses, supports our conclusion that the FBSA's express preemption
clause cannot be given such a broad reading. In Choate v. Champion Home
Building Co., ___ F.3d ___, 2000 WL 1022251 (10th Cir. July 25, 2000),
the Tenth Circuit held that, pursuant to the Supreme Court's teachings
in Geier, the preemption clause of the National Manufactured Housing
Construction and Safety Standards Act of 1974, 42 U.S.C. § 5403(d),
did not preempt a tort action against the manufacturer of a mobile home,
in light of the Manufactured Housing Act's also containing a savings provision
which stated that "[c]ompliance with any Federal manufactured home construction
or safety standard issued under this chapter does not exempt any person
from liability under common law," 42 U.S.C. § 5409(c). See Choate,
2000 WL 1022251, at *3-4 ("Given the nearly identical nature of the preemption
and saving clause provisions in the National Traffic and Motor Vehicle
Safety Act and the Manufactured Housing Act, we hold, in light of Geier,
that Choate and Madewell's claim is not expressly preempted.") (footnote
omitted). The Tenth Circuit then considered implied conflict preemption,
concluding that, because the common-law tort action did not conflict with
the federal standard requiring a hard-wired smoke detector in manufactured
homes nor thwart a federal policy, implied preemption did not lie. See
id. at *6-7.
20. The Locke Court
reaffirmed the principles set forth in Ray, holding that the State
of Washington's post-Ray regulations on the design and construction
of tankers traversing Puget Sound remained subject to preemption by the
comprehensive federal regulatory scheme governing oil tankers. See id.
21. The preemptive effect
of Coast Guard regulations is reinforced by the actions taken by the Coast
Guard after the FBSA's enactment in 1971-specifically, granting a blanket
exemption from preemption for then-existing state and local laws on recreational
boats, see 36 Fed. Reg. 15764-65 (1971), and later replacing the
blanket exemption with a more limited one, see 38 Fed. Reg. 6914-15
22. We also conclude that
product liability claims based on the defective design, manufacture, or
installation of products that are already installed and not subject to
Coast Guard regulation are also not preempted. See Lewis,
107 F.3d at 1504-05 (citations omitted).
23. In arguing against
preemption, Lady relies on the Solicitor General's position before the
Supreme Court in Lewis. Appearing as
amicus curiae for the
United States, the Solicitor General urged the Court to reverse the Eleventh
Circuit's judgment in Lewis. The Solicitor General maintained that
the FBSA and the Coast Guard's decision not to require propeller guards
neither expressly nor impliedly preempted state tort claims alleging that
the manufacturer should have installed a propeller guard. In finding implied
preemption in Geier, the Court "place[d] some weight upon [Department
of Transportation]'s interpretation of FMVSS 208's objectives and its conclusions,
as set forth in the Government's brief." Geier, 120 S.Ct. at 1926.
In accepting the view presented by the Solicitor General, the Court noted
that "[w]e have no reason to suspect that the Solicitor General's representation
of [Department of Transportation]'s views reflects anything other than
'the agency's fair and considered judgment on the matter.'" Id.
at 1927 (quoting Auer v. Robbins, 117 S.Ct. 905, 912 (1997)). The
Solicitor General, however, has not appeared in this case; therefore, his
views on the matter are not before us. Moreover, even if we were to consider
the position taken by the Solicitor General in Lewis, the weight
we would place on it would not be sufficient to overcome the reasons supporting
the application of implied preemption.