Ryan’s Law & Federal Preemption- part 1

Ryan’s Law, is a proposed law in the State of New York requiring propeller guards on vessels used to instruct children under the age of 18.

In October 2018, the U.S. Coast Guard National Boating Safety Advisory Council met and basically said Ryan’s Law is preempted by federal regulations and will be struck down.

The phrase “Federal Preemption” sometimes spelled “Federal Pre-emption” is probably best known in the boating industry as defense used by the industry against propeller guard cases prior to the Sprietsma decision made by the U.S. Supreme Court in 2002.

As we understand it, NBSAC is in error, federal preemption does not apply to Ryan’s Law.

This two part post will explain the history, background, and recent events surrounding this issue.

Federal Pre-emption

We will start out by defining federal preemption and more specifically how it historically applies to propeller guards.

The Federal Boat Safety Act of 1971, which was passed by Congress, updated and further enhanced a number of recreational vessel and boating safety requirements. This law was later codified by the U.S. Coast Guard and others in the U.S. Federal Code of Regulations. The Federal Boat Safety Act of 1971 did not mention propeller guards or require their use on all or any vessels.

By the early 1990’s the boating industry, most notably Mercury Marine and Brunswick Corporation, began using the Federal Pre-emption defense against propeller injury lawsuits. Firms within the boating industry said the Boating Safety Act of 1971 did not require the use of propeller guards on all recreational vessels, therefore it pre-empts individual states from requiring the use of propeller guards on any vessels. Thus lawsuits from individuals were federally preempted.

About the same time, the 1989 U.S. Coast Guard National Boating Safety Advisory Council (NBSAC) Subcommittee on Propeller Guards issued their final report. Since then there has been considerable discussion on how independent this committee actually was and upon their findings. However, the industry still cites this NBSAC subcommittee as finding propeller guards do not work and that guards themselves are dangerous.

The boating industry rode Federal Pre-emption combined the subcommittee’s findings quickly into the winner’s circle of several boat propeller injury cases.

On December 3rd, 2002 the U.S. Supreme Court’s decision in Sprietsma v. Mercury Marine struck down the federal preemption defense in boat propeller injury cases. The Supreme Court said neither the Federal Boat Safety Act of 1971 nor the the Coast Guard’s 1990 decision not to require propeller guards federally preempted Rex Sprietsma’s right to sue Mercury Marine in his wife’s death by a boat propeller.

Ryan Weiss Accident

Tuesday July 18, 2017, three boys were in the water trying to right a capsized sailboat as part of a training exercise at Centerport Yacht Club on Long Island, New York. One of those boys was picked up by a sailing instructor on a Rigid Inflatable Boat (RIB). As the boat accelerated, Ryan Weiss fell over the back of the boat and was fatally struck by the propeller.

Centerport Yacht Club RIB involved in the accident

Centerport Yacht Club RIB involved in the accident

We covered this accident back when it occurred at 12 year-old New York boy killed by boat propeller during sailing lesson.

Ryan’s Law

In an effort to prevent similar accidents in the future, Ryan’s family and friends started advocating for “Ryan’s Law”, a law requiring the use of propeller guards on boats used in youth instruction.

New York Assemblyman Raia holding Propeller Guard Press Conference image clipped from CBSNY image

New York Assemblyman Raia holding Propeller Guard Press Conference
image clipped from CBSNY image

At first they tried to pass the law in the New York State Legislature. Their initial efforts failed.

We covered those initial efforts at Regulations proposed requiring propeller guards on boats used to instruct children: New York.

Ryan’s Law Passes in Suffolk County

In June 2018, Ryan’s Law passed as a County Law in Suffolk County, New York. We covered the event in our post titled, Propeller Guard law passes: Suffolk County New York.

Ryan’s Re-Introduced to State of New York Legislature

In January 2019, Ryan’s Law was reintroduced in the New York State Legislature by New York State Senator, Jim Gaughran. We covered the event in our post titled, Ryan’s Law filed in State of New York. In mid April 2019, Ryan’s Law was still in committee.

The “guts” of Ryan’s Law as proposed reads, “Propeller guards. All vessels which have a propeller and are used to instruct children under the age of eighteen shall have propeller guards installed around the vessels propellers.”

NBSAC 100 Minutes

click to view PDF document

NBSAC 100 Minutes
Ryan’s Law preemption excerpts

The U.S. Coast Guard National Boating Safety Advisory Council (NBSAC) 100th meeting (NBSAC100) was held in October 2018. At that meeting NBSAC discussed Ryan’s Law in Suffolk County New York, and Ryan’s Law in the State of New York.

In mid April 2019 we received a copy of the October 2018 minutes of USCG’s NBSAC 100th meeting. We were previously unaware of this discussion.

We clipped the relevant excerpts of the meeting together into the two page PDF download at right.

Discussion of Excerpts of NBSAC100 Minutes

Comments on Page 5 excerpts:

NBSAC100 minutes say preemption is a significant issue due to Ryan’s Law. They go on to say the accident involved a 12 year old boy ejected from a pontoon boat.
As seen in our earlier coverage and the photo near the top of the page, they are in error. The young boy fell from a RIB.

The law the minutes say is to go into effect 29 October 2018 is the law in Suffolk County, New York, not the state wide New York law which has yet to pass.

NBSAC100 minutes cite 46 USC 4306 stating that unless permitted, a state or political division may not establish a law or regulation under 46 USCG 4302, the Coast Guard’s authority.

NBSAC100 minutes say Congress inserted the preemption clause to prevent the placement of additional requirements beyond those required by Federal Regulation.

NBSAC100 minutes state, “A study on propeller guards has shown possible negative effects, which led the Coast Guard to conclude it should not add a regulation to require propeller guards.”
This comment refers to the 1989 NBSAC Subcommittee on propeller guards mentioned earlier

NBSAC100 minutes go on to state, “there is no evidence to show that propeller guards would prevent fatalities in cases where a vessel is moving at speeds higher than 10 miles per hour, which is the circumstance under which 80 percent of injuries occur.”
They pull this from the 1989 study on page 19 where it states “Up to 80 percent of underwater impact accidents occur at normal operating speeds, in excess of 10 mph …” It is not obvious in the report where that data came from or exactly what kind of impacts they are referring to. Even if the 80 percent statement was accurate back in 1989 it is likely not accurate today with a different mix of vessels and activities, plus it definitely should not be applied to prop injuries on boats involved in youth instruction without further study. Neither the 10 mph comment or the 80 percent comment should be applied without further documentation.

If you go back to the 1989 study, page 11 states, “Presentations illustrated that approximately 80 percent of all accidents occur when a boat is operating at speeds in excess of 10 miles per hour, i.e. normal operating or planing speeds.” Note, no specific presentation is cited, plus the quote says “80 percent of all accidents” which indicates the 80 percent figure is for all kinds of accidents, not specifically for propeller accidents. We suggest the industry cease use that statement with regards to recreational boat propeller accidents until they have the statistics to back it up.

NBSAC100 minutes go on to call Ryan’s Law a non compliant law and and Suffolk County an offending jurisdiction. NBSAC100 minutes state that Suffolk County could somehow incentivize the use of propeller guards if they wanted to but cannot require their use.

In the minutes Mr. Klein, a state member of NBSAC, said his understanding was if the offending jurisdiction is made aware the law is flawed and anyone cited by it could appeal. Mr. Jones, another state member, asked it the state could be held accountable and if the State Boating Law Administrator (BLA) would assist in the matter. Mr. Burgess of USCG started talking about the grant program under which USCG sends significant funds from boat fuel tax rebates to the states to help run their boating safety programs.
It sounded like they were thinking about threatening to cut off New York’s boating safety grant funds. As if they were going to punish them for passing Ryan’s Law in Suffolk county.

Page 6 excerpts

NBSAC100 minutes say naming the laws after those killed makes them harder to block because promoters are emotionally charged.

Page 25 excerpts

NBSAC100 minutes state the Coast Guard is going to assert preemption over the Suffolk County law, but has not yet informed Suffolk County (as of October 2018).

NBSAC100 minutes state NBSAC does not believe the Suffolk County law would withstand judicial review and if someone was cited, they could appeal and would likely win.
Interestingly even in these minutes NBSAC is scrubbing out the phrase “Ryan’s Law”. The phrase “Ryan’s Law” is only used on the first of several pages discussing the law.

NBSAC100 minutes go on to state the Federal Boat Safety Act designated the Coast Guard as the national coordinator and Congress is to encourage greater and continuing uniformity of boating laws and regulations. The minutes note they could issue an exception to laws such as Ryan’s Law but they use their exemption authority very sparingly to encourage uniformity of boating laws across the country.

Page 27 excerpt

In the minutes, Mr. Adey (of ABYC) suggests NBSAC create a group to “discuss any law proposed by a state that deals with boat equipment.”
It sounds as though that group’s job would be to discourage individual states from promoting such laws.

Preview of Part 2

Part 2 of this post will present evidence suggesting NBSAC is in error, Ryan’s Law is NOT preempted.

          Continue to Part 2

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