56
Opinion of the Court
this character.4 Because the pre-emption defense raises a threshold issue, we have no occasion to consider the merits of petitioner's claims, or even whether the claims are viable as a matter of Illinois law. We must, however, evaluate three distinct theories that may support the pre-emption defense: (1) that the 1971 Act expressly pre-empts common-law claims; (2) that the Coast Guard's decision not to regulate propeller guards pre-empts the claims; and (3) that the potential conflict between diverse state rules and the federal interest in a uniform system of regulation impliedly preempts such claims. Before considering each of these theories, we review the history of federal regulation in this area.
II
The 1971 Act is the most recent and most comprehensive of the several statutes that Congress has enacted to improve the safe operation of recreational boats. A 1910 enactment required three classes of motorboats to carry certain lights, sound signals, life preservers, and fire extinguishers. Act of June 9, 1910, 36 Stat. 462. In 1918, Congress passed a law that required the numbering of motorboats over 16 feet long, Act of June 7, 1918, ch. 93, 40 Stat. 602, and in 1940, it reenacted the above requirements, provided a system of federal inspection, and authorized penalties for the reckless operation of motorboats, Act of Apr. 25, 1940, ch. 155, 54 Stat. 163. In 1958, Congress enacted additional numbering requirements to be administered by the States and directed the States to compile and transmit boating accident statistics to the Secretary of the Treasury. Federal Boating Act of 1958, 72 Stat. 1754. Section 9 of the 1958 Act expressed a policy of encouraging uniformity of boating laws insofar as practicable.
The accident statistics compiled by the States presumably were instrumental in persuading the 1971 Congress that ad-4 Brunswick has asserted that federal maritime law governs this case. Because this argument was not raised below, it is waived.
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