Mowery v. Mercury Marine, Div. of Brunswick Corp.

• Decision Date: 13 August 1991
• Docket Number: No. 1:90 CV 1212.,1:90 CV 1212.
• Citation: 773 F. Supp. 1012
• Parties: Scott MOWERY, Plaintiff, v. MERCURY MARINE, DIVISION OF BRUNSWICK CORPORATION, et al., Defendants.
• Court: U.S. District Court — Northern District of Ohio

773 F. Supp. 1012

Scott MOWERY, Plaintiff, v. MERCURY MARINE, DIVISION OF BRUNSWICK CORPORATION, et al., Defendants.

No. 1:90 CV 1212.

United States District Court, N.D. Ohio, E.D.

August 13, 1991.

Alton Stephens, Jr., Gallagher, Sharp, Fulton & Norman, Cleveland, Ohio, for plaintiff.

Robin Weaver, Squire Sanders & Dempsey, Cleveland, Ohio, for Mercury Marine.

Matthew O'Connell, Reminger 7 Reminger Co., Cleveland, Ohio, for Larson Boats.

MEMORANDUM OF OPINION

MANOS, District Judge.

On August 7, 1988, at approximately 9:30 p.m., plaintiff Scott Mowery was seriously injured when he was struck by the propeller blade of a powerboat. At the time, he was riding in an inflatable raft on Lake Erie.

On July 10, 1990, Mowery filed the above-captioned products liability action against defendants Mercury Marine and Larson Boats alleging that Mercury Marine's "Mercruiser I/O"¹ drive assembly and Larson Boats' "Delta Sport DC 215" powerboat were defectively designed, manufactured, and constructed because the propeller on Mercury Marine's drive assembly was not equipped with a propeller guard and the design of Larson Boats' powerboat did not include a propeller guard. Mowery also alleges that Larson Boat's powerboat was defectively designed because its "all around light" was mounted in such a way as to obstruct the operator's view. Jurisdiction is asserted under 28 U.S.C.A. §§ 1332 (West Supp.1990) (diversity of citizenship) and 1333 (West 1966) (federal admiralty and maritime jurisdiction).

On February 15, 1991, defendant Mercury Marine moved to dismiss on the ground that the court lacks subject matter jurisdiction over the claim based on its alleged "failure to provide a propeller guard" because it is preempted by the Federal Boat Safety Act of 1971, 46 U.S.C.A. § 4301, et seq. (West Sp.Pamph.1991) ("FBSA" or "Act"). On March 6, 1991, Larson Boats filed a motion to dismiss adopting the preemption arguments raised in Mercury Marine's motion.² For the following reasons, defendants' motions to dismiss the "propeller guard claims" are granted.

I.

The Supremacy Clause of Article VI of the United States Constitution³ gives Congress the power to preempt state law. See Allis-Chalmers Corp. v. Lueck, 471 U.S. 202, 208, 105 S.Ct. 1904, 1909, 85 L.Ed.2d 206 (1985); San Diego Bldg. Trades Council v. Garmon, 359 U.S. 236, 246-47, 79 S.Ct. 773, 780, 3 L.Ed.2d 775 (1959). State law may be preempted by federal law in any of three ways: first, Congress may draft a statute which includes language that explicitly defines the extent to which the federal statute preempts state law; second, despite the absence of explicit preemptive language, the wording of a federal statute or its legislative history may evince Congress' intent to occupy a given regulatory field to the exclusion of state law; and third, federal law may impliedly preempt state law to the extent that state law conflicts with a federal regulatory scheme. Taylor v. General Motors Corp., 875 F.2d 816, 823 (11th Cir.1989) (citing Michigan Canners & Freezers Ass'n v. Agricultural Mktg. & Bargaining Bd., 467 U.S. 461, 469, 104 S.Ct. 2518, 2523, 81 L.Ed.2d 399 (1984); International Paper Co. v. Ouellette, 479 U.S. 481, 494, 107 S.Ct. 805, 813, 93 L.Ed.2d 883 (1987)).

II.

To determine whether a claim is preempted, a court must examine Congressional intent. Schneidewind v. ANR Pipeline Co., 485 U.S. 293, 299-300, 108 S.Ct. 1145, 1150-51, 99 L.Ed.2d 316 (1988).

A.

The FBSA's preemption clause explicitly evinces Congress' intent to prohibit states from promulgating recreational boating equipment safety standards that are not identical to those contained in the Act. The preemption clause, codified at 46 U.S.C.A. § 4306 (West Sp.Pamph.1991), 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 equipment⁴ (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.

Id. (footnote added).

The purpose of this provision "is to standardize regulations applicable to the manufacture of boats by precluding states from adopting requirements that conflict with federal standards." Rubin v. Brutus Corp., 487 So.2d 360, 363 (Fla.Ct.App.1986). This purpose is evident from the legislative history of the Act:

Section 10. Federal Preemption

This section 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....

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. 248, 92d Cong., 1st Sess., reprinted in 1971 U.S.Code Cong. & Admin.News 1333, 1341.

The national regulations set out in the FBSA are promulgated by the Secretary of Transportation pursuant to statute:

The Secretary may prescribe regulations —

....

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.

46 U.S.C.A. § 4302(a)(2) (West Sp.Pamph. 1991). The Secretary's regulatory authority under the Act has been legislatively delegated to the United States Coast Guard.⁵

On February 1, 1990, the Coast Guard adopted as its official position that "available propeller guard accident data do not support imposition of a regulation requiring propeller guards on motorboats." Letter from Robert T. Nelson, Rear Admiral, U.S. Coast Guard, Chief, Office of Navigation and Waterway Services to Mr. A. Newell Garden, Chairman, NBSAC, at 1 (Feb. 1, 1990).⁶ This decision not to promulgate regulations requiring propeller guards was made after the required consultation with the National Boating Safety Advisory Council ("NBSAC").⁷ 46 U.S.C.A. § 13110 (West Sp.Pamph.1991). The events leading to the Coast Guard's position not to adopt a propeller guard requirement are as follows.

On May 11, 1988, at the Coast Guard's request, the NBSAC appointed a Propeller Guard Subcommittee to:

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.

Report of the Propeller Guard Subcommittee, Appendix A (Charge to the Subcommittee). Among the specific points the subcommittee was directed to consider was whether the Coast Guard should "move toward" establishing a federal requirement for some form of propeller guard on recreational boats. Id. at ¶ g. The subcommittee held three meetings between September 1988 and May 1989 to study these issues. Report of the Propeller Guard Subcommittee, at 2. After considering the available data on propeller strike accidents the testimony of numerous experts, the subcommittee determined that propeller guards are not feasible for recreational boats because they decrease an operator's ability to maintain control over the boat at "normal" speeds, increase the probability of striking a body in the water, and create a possibility of causing greater injury to those struck. Id. at 20-22.

On November 7, 1989, the subcommittee, by unanimous agreement, formally recommended to the NBSAC that the Coast Guard take no regulatory action to require propeller guards. Id. at 24; Minutes of the NBSAC, Report of the Committee on Propeller Guards, at 18. The NBSAC unanimously adopted the subcommittee's recommendations on the same date. Id. at 19. On February 1, 1990, the Coast Guard adopted the NBSAC's recommendation as its official policy. Nelson Letter, at 1. As a result, no provision of the Act requires the use of propeller guards on recreational boats.

It should be noted that no provision of the FBSA prohibits the use of propeller guards either. The decision of the Coast Guard was a decision not to regulate. This decision has the same legal consequence as if the Coast Guard had issued a safety standard declaring that the states are prohibited from adopting a regulation requiring propeller guards on recreational boats. See Arkansas Elec. Coop. Corp. v. Arkansas Public Serv. Comm'n, 461 U.S. 375, 384, 103 S.Ct. 1905, 1912, 76 L.Ed.2d 1 (1983) ("A federal decision to forego 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").

Congress has determined, through its statutory delegation of its regulatory authority to the Secretary of Transportation (and then delegated by the Secretary to the Coast Guard), that there shall be no federal propeller guard requirement. Therefore, in the absence of a federal...