Lady v. Neal Glaser Marine, Inc.

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT

No. 99-60382

STEVEN G. LADY,

Plaintiff-Appellant,

versus

NEAL GLASER MARINE, INC; ET AL,
Defendants,

OUTBOARD MARINE CORPORATION,
Doing Business As OMC, INC.,
doing business as OMCCC,
doing business as CHRIS CRAFT,

Defendant-Appellee.

Appeal from the United States District Court for the
Southern District of Mississippi

September 26, 2000

Before KING, Chief Judge, GARWOOD and DeMOSS, Circuit Judges.

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

2
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

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
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.

Discussion

We review a judgment rendered by a Magistrate Judge3 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.,

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
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); English 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. See Carstensen

v. Brunswick Corp., 49 F.3d 430, 431-32 (8th Cir. 1995); Moss 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.

5
Outboard Marine Corp., 776 F. Supp. 1579, 1581 (M.D. Ga. 1991); Mowrey

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

6
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,” id. at 1334,

required “a coordinated national boating safety program.” Id. 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. § 43024.

4
46 U.S.C. § 4302 provides:
“(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
safety; and
(B) being stated, insofar as practicable, in

7
 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 process.
(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

8
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. § 43056, exempted

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) states:
“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

9
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

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 consist of–
(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).

10
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

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:
a. what is the incidence of such accidents?
b. is there a trend toward more or fewer such
accidents?
c. what are the possible solutions and their
advantages/disadvantages?
d. how is this problem being addressed in other
nations?
e. what would be the direct costs and indirect
costs (fuel economy, maintenance, etc.) of
mechanical solutions?
f. can the risks be addressed by education?
g. should the Coast Guard move towards a
federal requirement for some form of

11
 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. See 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.” Id. 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.

propeller guard?
h. 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?
i. should only new boats and motors be equipped
with propeller guards, or should all boats
eventually be equipped with a guard?
j. 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.

12
Therefore, the Subcommittee considered feasibility as an important

issue. See id. Manufacturers, however, remained “opposed to mandatory

propeller guards.” Id. at 6.

The report later addresses the technical issues posed by propeller

guards9. 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.” Id. at 21.10 In addition, the

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.” Id. at 12. A mask guard
involves “surrounding the propeller like a fan cage or catcher’s mask,
constructed of wire mesh, bars or wires.” Id. 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. See id. 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. at
13.
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 particular risk.
Proponents [of propeller guards] assert that propeller
guard technology and/or availability meets the foregoing

13
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

criteria and that guards should be mandated. The
Subcommittee does not agree . . ..” Id. at 20.
11
The Subcommittee noted that:
“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 greater consequence.
[] 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.

14
“[t]he U.S. Coast Guard should take no regulatory action to require

propeller guards.” Id. at 24.

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 consideration.
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

15
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

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).

16
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

17
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

18
activity to fall within the admiralty jurisdiction of the federal

courts13. See 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), reprinted 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

13
“The judicial Power [of the United States] shall extend . . .
to all Cases of admiralty and maritime Jurisdiction . . ..” U.S. CONST.
art. III, § 2.

19
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.”

20
 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”

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.

21
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); see 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

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.”

22
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); CSX Transp., 113

23
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 provision16 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 clause17, “assumes that there are some significant

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. § 1392(d).
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. §

24
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. See 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.” Id.; see 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

omitted).

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

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

25
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 OMC.

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.

26
D Implied Preemption

Our conclusion that Lady’s action is not expressly preempted does

not “foreclose[] any possibility of implied pre-emption.” Freightliner

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

27
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

28
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.” Id. 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.’” Id. (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 Freightliner where

“the lack of federal regulation did not result from an affirmative

29
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 present case.

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. See 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-

30
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

31
effect. See Freightliner, 115 S.Ct. at 1488; Puerto Rico Dept. of

Consumer Affairs v. 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 omitted).

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

32
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. See 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

33
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

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. at 1148-50.

34
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;

Carstensen, 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

35
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. §

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 (1973).

36
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

Conclusion

For the reasons stated, the judgement of the district court is

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.

37
AFFIRMED.

38