Docket No. 89492–Agenda 17–March 2001.

REX R. SPRIETSMA, Adm’r of the Estate of Jeanne Sprietsma,

Deceased, Appellant, v. MERCURY MARINE, a dDivision of

								 Brunswick Corporation, Appellee.

Opinion filed August 16, 2001.

	JUSTICE GARMAN delivered the opinion of the court:

	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 Marine.

	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), reprinted in 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. Cipollone 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. Cipollone, 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

maritime jurisdiction.

	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 Busch 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, 423 (1999).

	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., Carstensen 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’s 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’s intent to preempt

common law claims).

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.”

Freightliner, 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

Lady, 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”); Lewis, 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[;]

Freightliner is distinguishable 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. Geier, 529 U.S. at 881, 146 L. Ed. 2d at 932, 120 S. Ct. at 1925.

	Mercury Marine maintains that we should apply Geier’s 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.” Ray 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 the

FBSA.

	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 Appeals in 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 the matter.

	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.” Geier, 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.

Affirmed.

	JUSTICE THOMAS took no part in the consideration or

decision of this case.

Docket No. 89492—Agenda 17—March 2001.

REX R. SPRIETSMA, Adm’r of the Estate of Jeanne Sprietsma

Deceased, Appellant, v. MERCURY MARINE, a division of Brunswick Corporation, Appellee.

		CHIEF JUSTICE HARRISON, dissenting:

	Under the Ssupremacy Cclause 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, 375-376, 122 L. Ed. 2d 180, 193, 113 S. Ct. ____838, 846 (1993) (Thomas, J.,

concurring).   

	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 U.nited S.tates 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 Sys.tems , 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””).  The majority is therefore wrong to hold that federal decisions are

controlling upon Illinois state courts in determining whether federal

law preempts state common law tort claims. 

	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.  

	The majority is also wrong in the result it reaches on the merits.   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 Ccongressional intent, our inquiry necessarily

begins with an analysis of the language of the statute. Scholtens, 173 Ill. 2d at 37980.   The language employed by Congress here could not be more clear. Section 4311(g)   of the FBSA expressly

provides:

	"“c[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).   

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 explicitly.      

	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

the

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 to remedy.   

	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.

[OLD DISSENT]

	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,

J., concurring).

	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”). The majority is therefore wrong

to hold that federal decisions are controlling upon Illinois state

courts in determining whether federal law preempts state common

law tort claims.

	The majority is also wrong in the result it 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. Scholtens, 173 Ill. 2d at 380. The language employed by Congress here could

not be more clear. Section 4311(g) of the FBSA expressly

provides:

			“compliance 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).

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 explicitly.

	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 the

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 to remedy.

	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.

	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,

J., concurring). 

	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. Scholtens, 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) (1994).

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 explicitly.

	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 to remedy. 

	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.

	justiJUSTICE KILBRIDE joins in this dissent.