Preemption prevails in watercraft case under Federal Boat Safety Act

For vehicle manufacturers that find themselves in state court facing product liability claims over safety mechanisms, federal preemption is frequently examined as an affirmative defense. Watercraft manufacturers, in particular, look to the Federal Boat Safety Act, which includes a mechanism for granting exemptions to boat manufacturers for vessels that, while they cannot comply with Coast Guard safety standards because of their design or construction, do not adversely affect boating safety.

State courts have handed down varied decisions on the question of preemption in watercraft product liability cases, but a recent decision out of Washington deserves a closer look for watercraft manufacturers asserting preemption.

Background

The U.S. Supreme Court has long recognized that preemption occurs (1) “when Congress, in enacting a federal statute, expresses a clear intent to pre-empt state law,” (2) “when there is outright or actual conflict between federal and state law,” (3) “where compliance with both federal and state law is in effect physically impossible,” (4) “where there is implicit in federal law a barrier to state regulation,” (5) “where Congress has legislated comprehensively, thus occupying an entire field of regulation and leaving no room for the States to supplement federal law,” and (6) “where the state law stands as an obstacle to the accomplishment and execution of the full objectives of Congress.” La. Pub. Serv. Comm’n v. F.C.C., 476 U.S. 355, 368–69 (1986). Additionally, “[preemption] may result not only from action taken by Congress itself; a federal agency within the scope of its congressionally delegated authority may pre-empt state regulation.” Id. at 369.

One such noteworthy statute is the Federal Boat Safety Act of 1971, 46 U.S.C. §§ 4301-4311 (“FBSA”), considered “the … most comprehensive” federal enactment intended to “improve the safe operation of recreational boats” on waters of the United States. See Sprietsma v. Mercury Marine, 537 U.S. 51, 56 (2002). The FBSA applies to all “recreational vessels and associated equipment[,]” and authorizes the Secretary of Transportation to “establish[ ] minimal safety standards” for such vessels and equipment. See 46 U.S.C. §§ 4301(a), 4302(a)(1). The Secretary has delegated this regulatory authority to the United States Coast Guard (“USCG”), 49 C.F.R. § 1.46(n)(1), which is authorized to promulgate boating regulations subject to the statutory requirements that it consider certain factors and consult with a National Boating Safety Advisory Council (“BSAC”).[1]  See 46 U.S.C. § 4302(c).

The FBSA contains a provision for granting exemptions to boat manufacturers for certain vessels that cannot comply with Coast Guard safety standards because of their design or construction. Under the FBSA, “[i]f the Secretary considers that recreational vessel safety will not be adversely affected, the Secretary may issue an exemption from this chapter or a regulation prescribed under this chapter.” 46 U.S.C. § 4305. A boat manufacturer petitions for an exemption from regulations by sending the Coast Guard’s Recreational Boating Product Assurance Division a letter describing the boat for which the exemption is sought, the reasons why the application of a regulation is impractical or unreasonable, and providing data or information that demonstrate why boating safety will not be adversely affected. To obtain an exemption, the manufacturer must show that the boat for which the exemption is sought achieves an acceptable level of safety in keeping with the intent of Federal boating safety laws. Over the years, the Coast Guard has granted exemptions from the regulations with respect to certain non-conventional boats including personal watercraft, airboats, hovercraft, submarines, drift boats, race boats, and mini bass boats.   

Rollins v. Bombardier Recreational Products

The preemptive scope of the Congressional authority under the FBSA with respect to state law product liability claims involving a personal watercraft was recently examined by the Washington Court of Appeals. See Rollins v. Bombardier Recreational Products, Inc., No. 73635-3-I, 2015 WL 9274912 (Wash. Ct. App. Dec. 21, 2015).

In Rollins, the plaintiff was injured when the 1999 Sea-Doo personal watercraft she tried to start exploded due to accumulated gas vapor in the craft’s engine compartment. The plaintiff brought a product liability claim under Washington’s Product Liability Act against the manufacturer of the craft, in Washington state court, contending that the manufacturer negligently designed the model of personal watercraft when it failed to include a powered engine ventilation system, a so-called “blower” device. The trial court granted the defendant summary judgment and dismissed the plaintiff’s claim on the grounds that the FSBA preempted her state product liability claim as a matter of law. The Washington Court of Appeals affirmed, holding that, because the plaintiff’s claim directly conflicted with the United States Coast Guard’s explicit decision, pursuant to Congressional authority, to exempt personal watercraft from the ventilation system requirement, it defeats the purpose of the FBSA and was therefore impliedly preempted.

The reach of the opinion goes beyond claims against manufacturers of personal watercraft, and potentially applies to claims based on the failure of a boat manufacturer to install a device, which the Coast Guard, having granted an exemption, has decided should not be required. Such a claim would conflict with the regulatory uniformity purpose of the FBSA by opening the door for states to impose different and potentially competing requirements on boat manufacturers. Rollins reaffirms the viability of the preemption affirmative defense against a state product liability claim that purports to impose a requirement inconsistent with federal safety standards and thus to defeat the federal government’s objective of maintaining uniform safety standards nationwide.

Like other affirmative defenses, federal preemption is subject to waiver, and the defendant has the burden of proof in establishing it. Courts and watercraft manufacturers therefore must remain vigilant and consistent in rejecting efforts to impose state law product liability claims that are inconsistent with the Federal Boat Safety Act.

[1]  Congress expressly limits Advisory Council membership to those “whom the Secretary considers to have a particular expertise, knowledge, and experience in recreational boating safety.” 46 U.S.C. § 13110(a). The Advisory Council is comprised of seven representatives from each of three industry groups: (1) “State officials responsible for State boating safety programs;” (2) “recreational vessel manufacturers and associated equipment manufacturers;” and (3) “national recreational boating organizations and [ ] the general public[.]” Id., § 13110(b)(1).

Carl Pesce and Manoo Mofidi are partners at Thompson Coburn LLP and defend manufacturers in product liability matters.