Supreme Court of the
State of Illinois
Docket No. 89492-Agenda 17-March 2001.
REX R. SPRIETSMA, Adm'r of the Estate of Jeanne
Deceased, Appellant, v. MERCURY MARINE, a
Brunswick Corporation, Appellee.
Opinion filed August 16, 2001.
JUSTICE GARMAN delivered the opinion of the
The issue in this case is whether the Federal
Boat Safety Act of 1971 (FBSA) (46 U.S.C. §4301 et seq. (1994))
preempts state common law causes of action based on the manufacturer's
failure to install propeller guards on boat engines. In July 1995, while
boating in Tennessee, plaintiff's decedent, Jeanne Sprietsma, fell from
a motor boat and was struck by the motor's propeller blades. As a result,
she suffered serious injuries that resulted in her death. The boat was
equipped with a 115-horsepower outboard motor, which did not contain a
propeller guard. The motor was designed, manufactured, and sold by Mercury
The decedent's husband, Rex Sprietsma, filed
a wrongful-death action against, among others, Mercury Marine, seeking
to recover damages for decedent's pain and suffering along with the pecuniary
loss suffered by himself and his son. Mercury Marine filed a motion to
dismiss pursuant to section 2-619 of the Code of Civil Procedure (735 ILCS
5/2-619 (West 1998)) on the grounds that Sprietsma's claims were expressly
preempted by the language of the FBSA's preemption clause and were also
impliedly preempted. The circuit court of Cook County granted Mercury Marine's
motion to dismiss, finding the claims to be impliedly preempted. The appellate
court affirmed, holding that the common law claims for failure to install
propeller guards were expressly preempted. 312 Ill. App. 3d 1040. We granted
Sprietsma's petition for leave to appeal pursuant to Supreme Court Rule
315 (177 Ill. 2d R. 315). As this case is an appeal from a section 2-619
motion to dismiss, our review is de novo. Carver v. Nall,
186 Ill. 2d 554, 557 (1999).
A. The Federal Boat Safety Act of 1971 and
the Coast Guard's
Decision Regarding Propeller Guards
Congress enacted the FBSA "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), reprintedin
1971 U.S.C.C.A.N. 1333. Due to an increase in the number of boat-related
accidents and fatalities, Congress enacted the FBSA to establish "a coordinated
national boating safety program." S. Rep. No. 92-248 (1971), reprinted
in 1971 U.S.C.C.A.N. 1331, 1334-35. To implement this goal, the FBSA
authorized the Secretary of Transportation (Secretary) to prescribe regulations
necessary to establish minimum safety standards for recreational boats.
46 U.S.C. §4302(a) (1994). The Secretary may delegate regulatory functions
to an organization or agency under his supervision (46 U.S.C. §4303(a)
(1994)) and, in fact, has delegated the regulatory authority to the Commandant
of the United States Coast Guard (49 C.F.R. §1.46(n)(1) (1999)). Before
issuing a regulation, the Coast Guard must consult with the National Boating
Safety Advisory Council (Advisory Council) to consider the need for a regulation
and the extent to which the regulations will contribute to recreational
boating safety. 46 U.S.C. §4302(c)(1) through (c)(4) (1994).
In 1988, the Coast Guard considered whether
to require manufacturers to install propeller guards on their boat motors.
The Coast Guard directed the Advisory Council to review the available data
on prevention of propeller-strike accidents and to assess the feasibility
and potential safety advantages and disadvantages of propeller guards.
The Advisory Council appointed a Propeller Guard Subcommittee (Subcommittee)
to review and analyze the data and to consider whether the Coast Guard
should move toward a federal propeller guard requirement. National Boating
Safety Advisory Council, Report of the Propeller Guard Subcommittee, November
7, 1989, at Appendix A.
After studying the issue and conducting public
hearings, the Subcommittee unanimously recommended that the "Coast Guard
should take no regulatory action to require propeller guards." Report of
the Propeller Guard Subcommittee, at 24. The Subcommittee made this recommendation
after finding that propeller guards could create other safety concerns,
including: (1) adversely affecting boat operations at speeds greater than
10 miles per hour; (2) increasing the chance of blunt force contact to
a person in the water; and (3) creating a new hazard in that an arm or
leg could be caught between the guard and the propeller blades. Report
of the Propeller Guard Subcommittee, at 19-21.
The Subcommittee's report was presented to
the Advisory Council, which accepted and adopted the recommendations. Minutes
of the 44th Meeting of the National Boating Safety Advisory Council 19
(November 6-7, 1989). The report and recommendations were then sent to
the Coast Guard, which adopted the Advisory Council's recommendations,
including its recommendation that no regulatory action should be taken
to require propeller guards because "[a]vailable propeller guard accident
data [does] 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 Safety and Waterway Services,
to A. Newell Garden, Chairman, National Boating Safety Advisory Council
(February 1, 1990).
B. Federal Preemption
Pursuant to the supremacy clause of article
VI of the United States Constitution, the laws of the United States "shall
be the supreme Law of the Land *** any thing in the Constitution or Laws
of any State to the Contrary notwithstanding." U.S. Const., art. VI, cl.
2. Thus, state law is without effect if it conflicts with federal law.
v. Liggett Group, Inc., 505 U.S. 504, 516, 120 L. Ed. 2d 407, 422,
112 S. Ct. 2608, 2617 (1992). Consideration of issues arising under the
supremacy clause begins with the assumption that the historic state police
powers are not to be superseded by federal law unless that is the clear
and manifest purpose of Congress. Cipollone, 505 U.S. at 516, 120
L. Ed. 2d at 422, 112 S. Ct. at 2617. Thus, the ultimate question in any
preemption analysis is to determine the intent of Congress.
505 U.S. at 516, 120 L. Ed. 2d at 422, 112 S. Ct. at 2617.
Federal law can preempt state law under the
supremacy clause in three circumstances: (1) where Congress has expressly
preempted state action (express preemption); (2) where Congress has implemented
a comprehensive regulatory scheme in an area, thus removing the entire
field from state realm (implied field preemption); or (3) where state action
actually conflicts with federal law (implied conflict preemption). Cipollone,
505 U.S. at 516, 120 L. Ed. 2d at 422-23, 112 S. Ct. at 2617; English
v. General Electric Co., 496 U.S. 72, 78-79, 110 L. Ed. 2d 65, 74,
110 S. Ct. 2270, 2275 (1990). Our focus in this case will deal with express
and implied conflict preemption.
The parties dispute whether our analysis should
begin with a presumption that federal law does not preempt Sprietsma's
common law tort claims against Mercury Marine. Sprietsma contends that
there is a strong presumption against preemption here because federal preemption
would displace state police powers that protect the health and safety of
its citizens. Conversely, Mercury Marine argues that this case does not
involve the historic police powers of the state but derives from federal
The United States Supreme Court has stated
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." United States v. Locke, 529 U.S. 89, 108, 146 L. Ed.
2d 69, 88, 120 S. Ct. 1135, 1147 (2000). However, an assumption of nonpreemption
is triggered when the state regulates health and safety matters which have
traditionally come within the jurisdiction of the state through its police
powers. Medtronic, Inc. v. Lohr, 518 U.S. 470, 474, 135 L. Ed. 2d
700, 709, 116 S. Ct. 2240, 2245 (1996). We recognize that Sprietsma's claim
that Mercury Marine designed a defective motor by failing to install a
propeller guard relates to health and safety concerns. However, the claim
also encompasses maritime activity, which is traditionally within the realm
of federal regulation.
Southern Pacific Co. v. Jensen, 244 U.S.
205, 215, 61 L. Ed. 1086, 1098, 37 S. Ct. 524, 528 (1917) ("Congress has
paramount power to fix and determine the maritime law which shall prevail
throughout the country");
Lady v. Neal Glaser Marine, Inc., 228
F.3d 598, 607 (5th Cir. 2000).
Section 4301(a) states that the FBSA and its
regulations apply "to a recreational vessel 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) (1994). Furthermore, the FBSA's "[g]eneral jurisdictional
applicability is to vessels within the historic federal maritime jurisdiction."
S. Rep. No. 92-248 (1971), reprinted in 1971 U.S.C.C.A.N. 1333,
1338. In deciding whether the claims in this case relate to federal maritime
activity, we note that the United States Supreme Court has held that a
collision between two pleasure boats on navigable waters had a sufficient
nexus to traditional maritime activity to come within the admiralty jurisdiction
of the federal courts.
Foremost Insurance Co. v. Richardson, 457
U.S. 668, 674, 73 L. Ed. 2d 300, 306, 102 S. Ct. 2654, 2658 (1982). Thus,
Sprietsma's claims bear upon an area historically regulated by the federal
government. When "state laws *** bear upon national and international maritime
commerce, *** there is no beginning assumption that concurrent regulation
by the State is a valid exercise of its police powers." Locke, 529
U.S. at 108, 146 L. Ed. 2d at 88-89, 120 S. Ct. at 1148. Although Sprietsma's
claims bear upon state and federal concerns, we believe the federal concerns
predominate in this case. Therefore, in deciding whether Sprietsma's claims
are preempted by the FBSA, we will not apply a presumption against preemption.
In addition, as we address the preemption
issue, we will look to the decisions of federal district and circuit courts.
Although we have stated in the past that the decisions of federal courts
interpreting a federal statute are controlling on Illinois courts (see
v. Graphic Color Corp., 169 Ill. 2d 325, 335 (1996)), this overstates
the degree of deference this court must pay to federal decisions. Thus,
in Wilson v. Norfolk & Western Ry. Co., 187 Ill. 2d 369, 381
(1999), we elected to follow the precedent of the Seventh Circuit with
regard to its interpretation of the Federal Employer's Liability Act (FELA)
(45 U.S.C. §51 et seq. (1994)), because we found the Seventh
Circuit analysis to be "reasonable and logical." More recently, however,
we declined to follow Seventh Circuit precedent in a case involving a preemption
issue under FELA when there was a split of authority among the federal
circuits and we believed the Seventh Circuit case was wrongly decided.
See Weiland v. Tectronics Pacing Systems, Inc., 188 Ill. 2d 415,
Nevertheless, as we have repeatedly recognized,
uniformity of decision is an important consideration when state courts
interpret federal statutes. See Weiland, 188 Ill. 2d at 422; Wilson,
187 Ill. 2d at 383;
Busch, 169 Ill. 2d at 335. Uniformity is particularly
important where, as here, the federal statute relates to a product that
is inherently mobile and thus likely to move from state to state. Indeed,
this suit was brought to recover damages in an Illinois court, under Illinois
law, for a death that took place in Tennessee. Boats also frequently navigate
in lakes or rivers that mark the boundary between two states. Thus, it
is essential that a uniform body of law be developed. In the absence of
a decision of the United States Supreme Court, which would definitively
answer the question presented by this case, we elect to give considerable
weight to the decisions of federal courts of appeals and federal district
courts that have addressed this issue.
C. Express Preemption
Keeping in mind the preceding preemption principles,
we first address whether the FBSA expressly preempts Sprietsma's common
law tort claims against Mercury Marine. Because Congress has demonstrated
its intent to preempt some aspects of state law under section 4306 (46
U.S.C. §4306 (1994)), we must determine the scope of preemption under
that provision by focusing on its text. See CSX Transportation, Inc.
v. Easterwood, 507 U.S. 658, 664, 123 L. Ed. 2d 387, 396, 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").
Section 4306 states:
"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 (1994).
Section 4306 preempts state laws or regulations
that are not identical to the regulations promulgated under the FBSA. Although
the FBSA does not define "law or regulation," the phrase clearly indicates
an intent to include common law claims.
Cipollone, 505 U.S. at 522,
120 L. Ed. 2d at 426, 112 S. Ct. at 2620 (state law includes common law
as well as statutes and regulations); Lewis v. Brunswick Corp.,
107 F.3d 1494, 1501 (11th Cir. 1997) (language demonstrates intent to include
common law claims); Farner, 239 Ill. App. 3d at 891. We also note
that both state and federal courts have held that the preemption provision
of the FBSA expressly preempts common law tort claims. See, e.g.,
v. Brunswick Corp., 49 F.3d 430, 433 (8th Cir. 1995);
Moss v. Outboard
Marine Corp., 915 F. Supp. 183, 186 (E.D. Cal. 1996); Shield v.
Bayliner Marine Corp., 822 F. Supp. 81, 84 (D. Conn. 1993); Mowery
v. Mercury Marine, 773 F. Supp. 1012, 1017 (N.D. Ohio 1991); Farner
v. Brunswick Corp., 239 Ill. App. 3d 885, 891-92 (1992); Ryan v.
Brunswick Corp., 454 Mich. 20, 39, 557 N.W.2d 541, 551 (1997).
However, we must examine section 4306 in conjunction
with the FBSA's savings clause provision of section 4311(g) (46 U.S.C.
§4311(g) (1994)), which states: "[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) (1994). Although section 4306, the preemption provision,
evinces Congress' intent to expressly preempt state laws or regulations
not identical to those promulgated in the FBSA, this provision prevents
us from finding express preemption.
The United States Supreme Court in Geier
v. American Honda Motor Co., 529 U.S. 861, 868, 146 L. Ed. 2d 914,
923, 120 S. Ct. 1913, 1918 (2000), stated that the inclusion of a savings
clause prohibits a broad reading of the express preemption provision. The
Court noted that the presence of a savings clause "assumes that there are
some significant number of common-law liability cases to save." Geier,
529 U.S. at 868, 146 L. Ed. 2d at 923, 120 S. Ct. at 1918. We agree that
section 4311 limits section 4306. Consequently, we find no express preemption.
See Lady, 228 F.3d at 611 (unable to conclude that section 4306
expressly preempted common law tort action); Lewis, 107 F.3d at
1502 (express terms of FBSA fail to show Congress' intent to preempt common
D. Implied Conflict Preemption
Although we find Sprietsma's action not to
be expressly preempted by the FBSA, we are not prohibited from finding
implied preemption. Buckman Co. v. Plaintiffs' Legal Committee,
531 U.S. 341, ___, 148 L. Ed. 2d 854, 863-64, 121 S. Ct. 1012, 1019 (2001)
("[N]either an express pre-emption provision nor a savings clause 'bar[s]
the ordinary working of conflict pre-emption principles' "), quoting Geier,
529 U.S. at 869, 146 L. Ed. 2d at 924, 120 S. Ct. at 1919; Freightliner
Corp. v. Myrick, 514 U.S. 280, 288, 131 L. Ed. 2d 385, 393, 115 S.
Ct. 1483, 1488 (1995) (the inclusion of an express preemption provision
"does not mean that the express clause entirely forecloses any possibility
of implied pre-emption").
The United States Supreme Court has found
implied conflict preemption where it is "impossible for a private party
to comply with both state and federal requirements" (English, 496
U.S. at 79, 110 L. Ed. 2d at 74, 110 S. Ct. at 2275), or where state law
"stands as an obstacle to the accomplishment and execution of the full
purposes and objectives of Congress" (Hines v. Davidowitz, 312 U.S.
52, 67-68, 85 L. Ed. 581, 587, 61 S. Ct. 399, 404 (1941); see also Freightliner,
514 U.S. at 287, 131 L. Ed. 2d at 392, 115 S. Ct. at 1487). Since it is
not impossible for a manufacturer to comply with a state common law rule
requiring propeller guards and the Coast Guard's decision not to require
them, we will address whether a state common law tort claim based on failure
to install the guards stands as an obstacle to the accomplishment of the
purposes and objectives Congress sought to achieve in enacting the FBSA.
Initially, Sprietsma maintains that the Supreme
Court's decision in
Freightliner precludes a finding of implied
preemption in this case. In Freightliner, the Supreme Court considered
whether common law claims based on the failure to install antilock brakes
on 18-wheel tractor-trailers were expressly or impliedly preempted by the
preemption clause of the Vehicle Safety Act.
Freightliner, 514 U.S.
at 282, 131 L. Ed. 2d at 389, 115 S. Ct. at 1485. The defendant tractor-trailer
manufacturers argued that the failure-to-install claims were preempted
because the National Highway Traffic Safety Administration (NHTSA) had
indicated its intent to regulate braking systems by issuing a regulation
on the matter. Freightliner, 514 U.S. at 284-86, 131 L. Ed. 2d at
390-91, 115 S. Ct. at 1486-87. That regulation was struck down by the Court
of Appeals for the Ninth Circuit, but the defendant manufacturers argued
it still had preemptive effect because it showed the NHTSA's intent to
forbid state regulation of braking systems.
Freightliner, 514 U.S.
at 286, 131 L. Ed. 2d at 391-92, 115 S. Ct. at 1487.
The Supreme Court rejected the manufacturers'
argument, stating that there was no federal standard on stopping distances
or vehicle stability for trucks or trailers, and there was "no evidence
that NHTSA decided that trucks and trailers should be free from all state
regulation of stopping distances and vehicle stability."
514 U.S. at 286, 131 L. Ed. 2d at 392, 115 S. Ct. at 1487. The Court stated
that "the lack of federal regulation did not result from an affirmative
decision of agency officials to refrain from regulating air brakes." Freightliner,
514 U.S. at 286, 131 L. Ed. 2d at 392, 115 S. Ct. at 1487. Thus, states
could implement safety standards and, without any federal standards, a
liability claim would not be in conflict with or frustrate the objectives
of Congress. Freightliner, 514 U.S. at 289, 131 L. Ed. 2d at 394,
115 S. Ct. at 1488.
In contrast to Freightliner, where
the lack of federal regulation was not the result of an affirmative decision
not to regulate, here, the Coast Guard did make an affirmative decision
to refrain from promulgating a propeller guard requirement. See
228 F.3d at 612 ("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");
107 F.3d at 1504 ("[w]hile an absence of regulation under the Vehicle Safety
Act does not prevent states from regulating motor vehicle safety standards,
an absence of federal regulation under the FBSA means that no regulation,
state or federal, is appropriate[;]
for that reason"). As we agree with the federal decisions in Lady
and Lewis, the ruling in Freightliner does not preclude a
finding of implied preemption in this case.
In Geier, the Supreme Court determined
whether Federal Motor Vehicle Safety Standard 208 (Safety Standard 208)
preempted a common law tort action based on the failure to install a driver's
side airbag. The Department of Transportation stated that the purpose of
Safety Standard 208 was to provide auto manufacturers with a choice of
whether or not to install airbags with a gradual phase-in of passive restraint
devices. Geier, 529 U.S. at 878-79, 146 L. Ed. 2d at 930, 120 S.
Ct. at 1924. Under an implied conflict preemption analysis, the Court stated
that Geier's tort action depended upon her claim that auto manufacturers
had a duty to install an airbag in her car when it was made. Geier,
529 U.S. at 881, 146 L. Ed. 2d at 931-32, 120 S. Ct. at 1925. This alleged
duty would have required other auto manufacturers to install airbags in
similar cars rather than other safety restraint systems, such as automatic
seatbelts or passive interiors. Geier, 529 U.S. at 881, 146 L. Ed.
2d at 932, 120 S. Ct. at 1925. This claim "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." Geier,
529 U.S. at 881, 146 L. Ed. 2d at 932, 120 S. Ct. at 1925. The Court thus
concluded that Safety Standard 208 preempted Geier's tort claim because
of the obstacle it presented to the accomplishment of federal objectives.
529 U.S. at 881, 146 L. Ed. 2d at 932, 120 S. Ct. at 1925.
Mercury Marine maintains that we should apply
ruling that Safety Standard 208 preempted conflicting state laws to this
case in order to preempt Sprietsma's tort claim. Sprietsma, on the other
hand, argues that there is no regulation by the Coast Guard with which
his claim could conflict, only a decision not to prescribe a standard.
According to Sprietsma, the absence of a regulation does not in itself
constitute a regulation. See
Freightliner, 514 U.S. at 286, 131
L. Ed. 2d at 392, 115 S. Ct. at 1487. However, the Supreme Court has stated
that "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." (Emphases omitted.) Arkansas Electric Cooperative Corp. v.
Arkansas Public Service Comm'n, 461 U.S. 375, 384, 76 L. Ed. 2d 1,
10, 103 S. Ct. 1905, 1912 (1983); see also Bonito Boats, Inc. v. Thunder
Craft Boats, Inc., 489 U.S. 141, 151-52, 103 L. Ed. 2d 118, 135, 109
S. Ct. 971, 978 (1989). The Supreme Court has also concluded that " '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 regulation."
v. Atlantic Richfield Co., 435 U.S. 151, 178, 55 L. Ed. 2d 179, 201,
98 S. Ct. 988, 1004-05 (1978), quoting
Bethlehem Steel Co. v. New York
State Labor Relations Board, 330 U.S. 767, 774, 91 L. Ed. 1234, 1246,
67 S. Ct. 1026, 1030 (1947).
In determining whether the Coast Guard's failure
to promulgate a propeller guard requirement compels the conclusion that
no such regulation is appropriate, we find helpful the Supreme Court's
decision in Ray. In that case, the Supreme Court considered whether
federal law preempted the State of Washington's enactment of a law regulating
standard safety features and weight of oil tankers navigating Puget Sound.
The Washington "Tanker Law" sought to exclude tankers in excess of 125,000
DWT (dead weight tons) from Puget Sound. Ray, 435 U.S. at 173, 55
L. Ed. 2d at 198, 98 S. Ct. at 1002. Shipbuilders alleged these requirements
were preempted by section 1222(b) of the federal Ports and Waterways Safety
Act (PWSA) which prohibited states from imposing higher safety standards
than those prescribed by the Transportation Secretary. The Court stated
that enforcement of the state's design requirements "would at least frustrate
*** the evident congressional intention to establish a uniform federal
regime controlling the design of oil tankers." Ray, 435 U.S. at
165, 55 L. Ed. 2d at 193, 98 S. Ct. at 998.
The Court then looked at the PWSA and the
state's exclusion of vessels in excess of 125,000 DWT. Ray, 435
U.S. at 173, 55 L. Ed. 2d at 198, 98 S. Ct. at 1002. The Court found that
section 1222(b) of the PWSA was intended to have a preemptive impact. Further,
even without section 1222(b), it would be reluctant to uphold the Tanker
Law's absolute ban on tankers in excess of 125,000 DWT. Ray, 435
U.S. at 178, 55 L. Ed. 2d at 201, 98 S. Ct. at 1004. The Court based this
conclusion on the Coast Guard's vessel traffic control system for the Rosario
Strait. Ray, 435 U.S. at 178, 55 L. Ed. 2d at 201, 98 S. Ct. at
1004-05. The Transportation Secretary, through the Coast Guard, promulgated
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 the Rosario Strait, descriptions and
geographic coordinates of the separation zones and traffic lanes, and a
specification for precautionary areas and reporting points." Ray,
435 U.S. at 170, 55 L. Ed. 2d at 196, 98 S. Ct. at 1001. A local Coast
Guard rule prohibited the passage of more than one 70,000 DWT vessel in
Rosario Strait in either direction at a given time, and in bad weather,
the restriction was reduced to 40,000 DWT. Ray, 435 U.S. at 171,
55 L. Ed. 2d at 197, 98 S. Ct. at 1001.
The Court stated the question then was whether
the Transportation Secretary, through the Coast Guard, had addressed the
size limitation question. Ray, 435 U.S. at 174, 55 L. Ed. 2d at
199, 98 S. Ct. at 1003. Because of the navigation rules pertaining to the
Rosario Strait, the Court held that the Secretary's failure to promulgate
a ban on the operations of oil tankers in excess of 125,000 DWT took on
the character of a ruling that no such regulation is appropriate pursuant
to the policy of the PWSA. Ray, 435 U.S. at 178, 55 L. Ed. 2d at
201, 98 S. Ct. at 1004-05.
The Supreme Court reaffirmed the framework
and holding of
Ray in Locke, 529 U.S. at 103-04, 146 L. Ed.
2d at 85-86, 120 S. Ct. at 1145. There, the Court stated that "Ray
defined the relevant inquiry for *** pre-emption as whether the Coast Guard
has promulgated its own requirement on the subject or has decided that
no such requirement should be imposed at all." Locke, 529 U.S. at
110, 146 L. Ed. 2d at 89, 120 S. Ct. at 1148.
We believe that the Coast Guard's failure
to promulgate a propeller guard requirement here equates to a ruling that
no such regulation is appropriate pursuant to the policy of the FBSA. The
Coast Guard made an informed decision that no regulatory action should
be taken to require propeller guards after studying the findings and recommendations
of the Advisory Council and the Propeller Guard Subcommittee. A damage
award would, in effect, create a propeller guard requirement, thus frustrating
the objectives of Congress in promulgating the FBSA. See Lady, 228
F.3d at 614 (damage award "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 manufactures
flexibility in the matter");
Lewis, 107 F.3d at 1505 (plaintiffs'
"product liability claims seek to impose a propeller guard requirement").
Thus, Sprietsma's claim would present an obstacle to the accomplishment
and execution of the purposes and objectives Congress sought in enacting
We stated earlier that in an effort to give
uniform application to the FBSA, we would give great weight to federal
decisions on this matter. In that regard, we note that several federal
district courts and courts of appeals have found preemption, express or
implied, in similar propeller guard cases. See, e.g., Lady v.
Neal Glaser Marine, Inc., 228 F.3d 598 (5th Cir. 2000); Lewis v.
Brunswick Corp., 107 F.3d 1494 (11th Cir. 1997); Carstensen v. Brunswick
Corp., 49 F.3d 430 (8th Cir. 1995); Moss v. Outboard Marine Corp.,
915 F. Supp. 183 (E.D. Cal. 1996); Davis v. Brunswick Corp., 854
F. Supp. 1574 (N.D. Ga. 1993); Shield v. Bayliner Marine Corp.,
822 F. Supp. 81 (D. Conn. 1993); Shields v. Outboard Marine Corp.,
776 F. Supp. 1579 (M.D. Ga. 1991);
Mowery v. Mercury Marine, Division
of Brunswick Corp., 773 F. Supp. 1012 (N.D. Ohio 1991).
The Fifth Circuit Court of Appeals in Lady
dealt with a jet ski operator who was severely injured by the propeller
blades of a boat with which he had collided. Lady, 228 F.3d at 600.
The court of appeals held that the operator's claims, based on the manufacturer's
failure to install propeller guards on its boat, were impliedly preempted
by the FBSA.
Lady, 228 F.3d at 615. The Eleventh Circuit Court of
Lewis dealt with a passenger on a boat who was killed
after she fell in the water and was struck by the propeller blades. Lewis,
107 F.3d at 1497. The court of appeals held that her parents' claims, based
on the engine's being defective because it lacked a propeller guard, were
impliedly preempted because they conflicted "with the regulatory uniformity
purpose of the FBSA." Lewis, 107 F.3d at 1506.
On appeal to the United States Supreme Court,
the Solicitor General in Lewis argued that the Coast Guard's failure
to issue a regulation concerning propeller guards was not a basis for implied
conflict preemption of common law tort claims.(1)
Sprietsma argues that this court should adhere to the argument presented
by the Solicitor General, urging reversal in Lewis. In support of
this contention, Sprietsma points out that in Geier, the Supreme
Court placed "some weight upon DOT's [Department of Transportation's] interpretation
of [Safety Standard] 208's objectives and its conclusion, as set forth
in the Government's brief." Geier, 529 U.S. at 883, 146 L. Ed. 2d
at 933, 120 S. Ct. at 1926. The Court concluded that it had "no reason
to suspect that the Solicitor General's representation of DOT's views reflects
anything other than 'the agency's fair and considered judgment on the matter.'
" Geier, 529 U.S. at 884, 146 L. Ed. 2d at 933, 120 S. Ct. at 1927,
quoting Auer v. Robbins, 519 U.S. 452, 462, 137 L. Ed. 2d 79, 91,
117 S. Ct. 905, 912 (1997). We do not believe that Sprietsma's reliance
on the United States' position in Lewis warrants our deference on
First, the Solicitor General has not presented
his argument concerning the Lewis case or the Sprietsma claim to
this court. See
Lady, 228 F.3d at 615 n.23 (absent his appearance,
Solicitor General's views on the matter not before the court). Second,
the Court in Geier stated that it would place "some weight" on the
DOT's interpretation. Geier, 529 U.S. at 883, 146 L. Ed. 2d at 933,
120 S. Ct. at 1926. Thus, even if we were to consider the Solicitor General's
argument in Lewis, we do not believe the weight given to it would
overcome the application of our implied preemption analysis. See Lady,
228 F.3d at 615 n.23. Third, arguments made in the Lewis brief have
been rejected by the Supreme Court in Geier. For example, the Solicitor
General in the
Lewis brief argued that the existence of the savings
clause (section 4311(g)) "makes clear Congress's explicit intent to preserve
tort liability." But the Geier Court found implied preemption in
the presence of the savings clause and rejected the argument that this
clause "bar[red] the ordinary working of conflict pre-emption principles."
529 U.S. at 869, 146 L. Ed. 2d at 924, 120 S. Ct. at 1919.
In considering the federal decisions on this
matter, we find the Fifth Circuit's opinion in Lady persuasive and
agree that: "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." Lady, 228
F.3d at 615.
Furthermore, we are not persuaded by the two
state court decisions that have held that federal law does not preempt
state law in this type of case. See Moore v. Brunswick Bowling &
Billiards Corp., 889 S.W.2d 246 (Tex. 1994); Ard v. Jensen,
996 S.W.2d 594 (Mo. App. 1999). As these cases represent the minority view
on this matter, we believe a finding of preemption is warranted here in
order to continue the line of uniformity laid down by the federal courts
that have found preemption under the FBSA. Therefore, based on the preceding
analysis, we find that Sprietsma's common law tort claims are impliedly
preempted by the FBSA.
As a final note, Mercury Marine filed a motion
to strike the first five pages of Sprietsma's reply brief insofar as it
argued that the preemption defense was unavailable because the boat motor
was manufactured in 1988, more than a year before the Coast Guard's 1990
decision not to take regulatory action. Sprietsma's argument was never
addressed or ruled upon by the circuit or appellate courts. Also, Sprietsma
did not raise the argument in his brief to this court but raised it for
the first time in his reply brief. Under Supreme Court Rule 341(e)(7),
points not argued in the appellant's brief are waived and shall not be
raised in the reply brief. 177 Ill. 2d R. 341(e)(7). Therefore, this argument
is waived. Mercury Marine's motion to strike portions of Sprietsma's reply
brief, which was taken with the case, is allowed.
For the foregoing reasons, we affirm the appellate
court's judgment that the FBSA preempts Sprietsma's common law claims for
failure to install propeller guards.
JUSTICE THOMAS took no part in the consideration
or decision of this case.
CHIEF JUSTICE HARRISON, dissenting:
Under the supremacy clause of the United States
Constitution (U.S. Const., art. VI, cl. 2), state law must yield to federal
law, but neither federal supremacy nor any other principle of federal law
requires that a state court's interpretation of federal law give way to
a lower federal court's interpretation. A state court's interpretation
of federal law is no less authoritative than that of the federal court
of appeals in whose circuit the trial court is located. The only federal
court whose interpretation of federal law is binding on the courts of Illinois
is the United States Supreme Court. If the courts of this state follow
a lower federal court's interpretation of federal law, they do so only
because they choose to, not because they must. Lockhart v. Fretwell,
506 U.S. 364, 376, 122 L. Ed. 2d 180, 193, 113 S. Ct. 838, 846 (1993) (Thomas,
Notwithstanding the view expressed by former
Justice Bilandic in his opinion in Busch v. Graphic Color Corp.,
169 Ill. 2d 325, 335 (1996), the most recent decisions of our court have
adhered to this view. In the absence of controlling United States Supreme
Court precedent, we may "elect" to follow Seventh Circuit precedent construing
a federal statute. Wilson v. Norfolk & Western Ry. Co., 187
Ill. 2d 369, 383-84 (1999). We are not required to do so, however, and
are free to depart from that precedent whenever we believe it is wrongly
decided. Weiland v. Telectronics Pacing Systems, Inc., 188 Ill.
2d 415, 423 (1999). See also People v. Kokoraleis, 132 Ill. 2d 235,
293-94 (1989) ("decisions of lower Federal courts are not conclusive on
State courts, except insofar as the decision of the lower Federal court
may become the law of the case").
Contrary to my colleagues' view, this is not
a case where our authority to make an independent interpretation of federal
law should yield to considerations of uniformity. If our view of federal
law differs from that of the lower federal courts and the conflict proves
problematic, the United States Supreme Court may grant review to resolve
the conflict. We should not perpetuate an erroneous interpretation of the
law merely because it has been endorsed by some lower federal court judges.
Uniformity is no virtue if it means being uniformly wrong.
I also disagree with the result the majority
reaches on the merits. My colleagues go to enormous lengths to uphold a
finding of preemption when they should be doing exactly the opposite. Preemption
is disfavored. As our court has previously held, a presumption exists in
every preemption case that Congress did not intend to supplant state
law. Scholtens v. Schneider, 173 Ill. 2d 375, 379 (1996).
In ascertaining congressional intent, our
inquiry necessarily begins with an analysis of the language of the statute.
173 Ill. 2d at 380. The language employed by Congress here could not be
more clear. Section 4311(g) of the FBSA expressly provides:
"[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)
If we are to give this provision its plain
and ordinary meaning, as we must, Mercury Marine's compliance with the
standard adopted by the Coast Guard, which was not to require propeller
guards, clearly does not bar the common law tort claims asserted against
it by Sprietsma in this case. Indeed, it is difficult to see how Congress'
intention to preserve such tort claims could have been expressed any more
The Supreme Court of Texas (Moore v. Brunswick
Bowling & Billiards Corp., 889 S.W.2d 246 (Tex. 1994)) and the
Missouri Court of Appeals (Ard v. Jensen, 996 S.W.2d 594 (Mo. App.
1999)) have reached the same conclusion on similar facts: the FBSA does
not preempt common law tort claims based on failure to install propeller
guards. Although our appellate court took a contrary position in Farner
v. Brunswick Corp., 239 Ill. App. 3d 885 (1992), that case is premised
on a narrow construction of section 4311, which cannot be justified given
the broad language Congress employed when it drafted the statute. See Ard,
996 S.W.2d at 600.
Farner should be overruled.
While allowing common law tort claims to go
forward may seem to create a tension with the Coast Guard's policy against
propeller guards, that is a circumstance we must assume Congress considered
when it adopted section 4311(g). If section 4311(g) ultimately proves unworkable
when applied as written, that is a matter for Congress and not this court
For the foregoing reasons, the judgment of
the appellate court affirming the dismissal of plaintiff's complaint should
be reversed, and the cause should be remanded to the circuit court for
further proceedings. I therefore dissent.
1. A petition for
was granted in Lewis v. Brunswick Corp., 522 U.S. 978, 139 L.
Ed. 2d 337, 118 S. Ct. 439 (1997), but after oral argument and before a
decision was issued, the parties settled and the petition for certiorari
was dismissed (Lewis v. Brunswick Corp., 523 U.S. 1113, 140 L. Ed.
2d 933, 118 S. Ct. 1793 (1998)).