No state action for lack of propeller guard.

• Position: Federal pre-emption

Agreeing with a number of lower federal courts, the Illinois Supreme Court held that federal law impliedly pre-empts state common law tort actions based on manufacturers' failure to install propeller guards on boats. Sprietsma v. Mercury Marine Division of Bruswick Corp., 2001 WL 947062, decided August 16.

At issue was a studied decision by the U.S. Coast Guard not to require propeller guards, an action taken by that agency under the Federal Boat Safety Act of 1971. That act pre-empts any state "law or regulation" not "identical" to a federal regulation. 46 U.S.C. [section] 4306. However, a savings clause states that compliance with regulations "does not relieve a person from liability at common law or under state law." 46 U.S.C. [section] 4311(g).

The plaintiff commenced a state law wrongful death suit in Illinois based on a fatal accident that occurred in Tennessee. The trial court dismissed on the ground of implied federal pre-emption, and that state intermediate appellate court had affirmed on the ground of express pre-emption. 729 N.E.2d 45.

In the beginning, the state supreme court noted that the suit related to maritime jurisdiction and thus to an area historically regulated by the federal government. Writing for the majority, Justice Garman concluded that "federal concerns" predominated, and therefore the ordinary presumption against pre-emption was not applicable. From there, the court ruled out express pre-emption because of the savings...