From the mid 1990’s up to December 2002, the boating industry relied upon Federal Preemption as their primary defense in propeller accident cases. The industry said that since the U.S. Coast Guard did not require propeller guards on all boats, then individual states could not require them to have been on the boat involved in the accident. If they did, the state would be preempting Federal laws. The industry lost that defense in December 2002 when Mercury Marine/Brunswick lost the Sprietsma case in front of the U.S. Supreme Court. The U.S. Supreme ruled that in the absence of USCG regulations requiring guards on all boats, individual states could require guards on certain boats and would not not preempting federal regulations.

Loss of the Federal Preemption sent the industry scurrying for other defenses in propeller guard cases. We recently addressed some of the problems associated with their increasing reliance on the 1989 National Boating Safety Advisory Council SubCommittee on Propeller Guards report as a defense.

Now, the industry seems to be switching to a trio of statements describing a paradox they say prevents them (drive manufacturers, boat builders, and dealers) from including propeller guards with new boats or with the drive.

The Propeller Guard Installation Paradox:

• Drive builder – we sold the drive without a propeller. We do not know what size of propeller will be used on it, what kind of boat it might be used on (pontoon, houseboat, RIB, wakeboard boat, etc.) or for what primary purpose (fishing, skiing, runabout, etc.) or what environment the drive will primarily be used in (shallow water, weeds, lakes, rivers, etc.), therefore we could not possibly have selected the proper propeller guard and sent it along with the drive.
• Boat Builder – we sold the boat to a dealer without a drive or without a propeller. We do not know what size of drive or propeller will be used on the boat or for what primary purpose (fishing, skiing, runabout, etc.) the boat will be used or what environment the boat will primarily be used in (shallow water, weeds, lakes, rivers, etc.), therefore we could not possibly have selected the proper propeller guard and sent it along with the boat.
• Boat Dealer – we sold the boat without a drive or without a propeller. We do not know what size of drive or propeller will be used on the boat or for what primary purpose (fishing, skiing, runabout) the boat will be used or what environment the boat will primarily be used in (shallow water, weeds, lakes, rivers, etc.), therefore we could not possibly have selected the proper propeller guard and sent it along with the boat. Plus even if we did sell the boat with a drive and propeller installed, its not our problem anyway, the boat builder or drive manufacturer should be providing them. We are just a dealer, we would not know which guard to use, and right now drive manufacturers are telling us not to use guards.

The industry preambles the Paradox Defense with “guards don’t work, but even if they did, we would not have been able to include the correct one with the boat or drive because …… (insert the Paradox Defense).”

We have not seen the industry use the term “paradox”, but that is what they are claiming. They claim it is impossible for them to know the status (size and use) of the propeller that will eventually be placed on their boat/drive and therefore they could not possibly be held accountable for propeller accidents that could have been prevented with a guard because they could not have known which one to include when they sold the boat or drive.

The Paradox Defense was recently used very successfully in Daniel J. Regan and Francis Elwood Regan Jr. v. Starcraft Marine LLC, et. al. Civil Action No. 06-1257. U.S. District Court. W.D. Louisiana, Shreveport Division. Portions of the actual ruling to remove any and all liability for not installing propeller guards from the Regan v. Starcraft case is below (Docket item 190 dated 17 March 2010):

A critical distinction in this case is that when the subject boat/motor units left Starcraft’s control, the boat/motor units were not equipped with propellers…. Starcraft did not manufacture, install, sell, or distribute the propeller that was involved in the accident in this case. Likewise, Starcraft was in no way involved in deciding what type of propeller to purchase and whether to install a propeller guard…. The purchase and selection of a propeller guard was dependent upon the purchase and selection of a propeller, a decision that was not made by Starcraft. Even any remote connection between Starcraft and the ultimate decision of whether to install a propeller guard is too legally attenuated to impose liability.

Uncle Milton’s Ant Farm faced a somewhat similar paradox back in 1956. They wanted to place their ant farm in stores to acquire shelf space so they could be on equal footing with other toys and hobbies, however, they could not place live ants in the package. Live ants would either die on the shelf, or escape and run amuk in the stores. Uncle Milton quickly adapted a coupon method whereby they include a returnable coupon in each package that is good for a tube of the appropriate number of ants and type of ants for that specific ant farm. Uncle Milton could have even supplied different kinds of ants based up on local climates if they had desired to do so (they had the end user’s address and could view local weather patterns from weather records). Uncle Milton also includes instructions for how to identify the correct ants if you wish to find your own outdoors (Pogonomyrmex, Western Harvester ants, also known as “bearded ants” over 1/4 inch long.) Uncle Milton did actually wait to ship the ants based on anticipated temperatures along the shipping route so the ants did not freeze or die from the heat.

The boating industry could similarly include a coupon with every boat or drive enabling the end user to purchase the correct propeller guard. The coupon could include a unique code similar to that used for registering software that would effectively prevent others from making copying and reusing it. The propeller guard coupon process would be similar to the one used for warranty cards. The end user could either fill out a card supplying the information necessary for the industry to select the appropriate guard, then either (1) give the card to the dealer, (2) mail the card in, or (3) submit it online along with his coupon number.

Instead of creating a unique coupon number, the coupon might be pre-imprinted with the drive’s model number and serial number (another unique combination).

The Propeller Guard Coupon system could be used for one or both of the processes below:

1. A means for the drive and/or boat manufacturers to obtain the information necessary to select the proper propeller guard and to identify the end user with the unique coupon number.
2. As a financial instrument.

Using the Coupon to Select the Proper Propeller Guard

Drive manufacturers already have extensive databases to assist them in selecting the correct propeller for a certain type of boat being used in certain activities. For example, Mercury Marine used to print a huge propeller selection book. Much of the selection process can now be accomplished online. Mercury Marine’s new website released in 2010 includes a propeller selection tool for identifying which of their propellers to install by boat type, desired performance, and drive manufacturer, Find Your Ideal Mercury Propeller in 5 Steps or Less. This same tool could be adapted to selecting the proper propeller guard to go a long with that propeller and drive.

The end use could either install his new propeller and prop guard, or go by his dealer to have them install it.

Note- selecting a propeller is still a bit of a black art. The selection processes note you may have to install a few of propellers to get the best one for your needs. Since propellers may interact with guards, it would be best to select them together. If you optimize the propeller before selecting the guard, the propeller may no longer be optimized (RPM fall out of desired operating range). The propeller and guard should be selected as a team when possible, and the boat dealer (point of sale) appears to be the best place to accomplish that in many situations. Boat dealers are already used to working their way through the propeller selection process. Now they would just need to select the guard type recommended by the drive manufacturer for this specific application (ring, cage, full cage, etc), probably reduce the propeller pitch just a little to bring the RPMs back up to the desired range, and select the exact guard of the type selected to fit this drive and propeller size. Another option would be to use a process similar to the online propeller selection tool from Mercury Marine we discussed earlier. That tool could be easily adapted to incorporating the selection of guards as well.

Using the Coupon as a Financial Instrument

The industry players (boat builders, drive manufacturers, and dealers could decide among themselves if they wished to partially or fully fund the cost of the propeller guard and/or the cost of its installation AND how the three players would apportion those costs between themselves. In one world, the hardware costs could be split equally between the boat builder and the drive manufacturer with the dealers contribution being collecting the paper work, inventorying the prop guards, and selecting and installing the propeller guards.

Cost of the exact guard chosen and installation costs up to a predetermined limit could be “billed” to the unique number on the coupon, with the parties squaring up just like they currently do for parts and labor consumed under warranty repairs OR the entire costs could be billed to the customer with the card’s only purpose being to convey the necessary information to select the proper propeller guard.

In another variation, the coupon could just offer an “x” percent discount for the next 30 days on one of the propeller guards sold by those authorized by the drive manufacturer to provide guards under their specific program. The guard manufacturers would like to be included in such a program to guarantee some ongoing sales, so they might offer a modest discount for free, or at least split it with the industry paying for only half of the discount.

Overcoming Other Objections to Industry Post Factory Installation of Propeller Guards: Including Examples From Other Industries

Another objection to guards often raised by the industry, is they do not like holes being drilled in their drives for use as mounting points for some guards. They claim the holes could create stress points in areas not designed to carry loads and the resulting stresses and vibrations could break the drive. They also point to possible corrosion issues where the holes are drilled through the surface coatings of the drive.

Drive manufacturers could design their drives in advance to accept their own propeller guards by beefing areas needing reinforced and by incorporating any necessary mounting holes either as pre-formed holes or as “knock outs” that could be easily removed. We would anticipate the industry might select a guard style that did not require mounting holes (similar to MariTech’s guards), but even then, they could still make some small changes in the drive to improve the mounting, performance (safety and drag reduction), and durability of the combined drive/propeller/guard system.

This is very similar to what happened with ROPS (Roll Over Protection Systems) for agricultural tractors. At first, the industry rejected them and said the tractor frames were not designed to and not capable of carrying the loads generated by a ROPS during a roll over. Now they have beefed up their frames in the appropriate areas, supply ROPS mounting points, and tout the improved safety they offer.

Uncle Milton’s Ant Farm is not the only business model in which accessories are not factory installed. Some that come to mind are:

• Boat Propellers are typically not included with new marine drives. They are dealer installed or purchased from a third party for DIY (do it yourself) install.
• Boat modifications performed by dealers for high altitude operation (change to smaller carburetor jets, switch to lower pitch prop, increase gear case ratio).
• Boat dealers are installing OEM wakeboard towers as well as some “will fit” towers. Wakeboard boat towers somewhat resemble ROPS (roll over protection system) which is the next item on this list.
• Dealer installed ROPS (Roll Over Protection System) for agricultural tractors. ROPS have many similarities to propeller guards (safety device, designed as a barrier to keep people out of certain areas, concern for the strength of the underlying structure, they are basically cages, tractor manufacturers objected to their use, they are often field installed, etc.).
• Backhoe and excavator buckets (usually selected at the dealership or purchased from a third party)
• Trencher digging chains are often selected at the trencher dealership to get the proper length and digging teeth for the application or region of the country.
• Automobile tires (cars are shipped with basic rims and tires, dealers can install optional rims and tires as desired by the end user).
• Rear spoilers on some cars
• 2006 Honda Ridgeline offered dealer installed rear parking sensors (indicate if something is directly behind you or off to one side) as a safety option. The sensors were integrated into the rear bumper.
• Trailer hitches (bear some similarity to propeller guards in terms of different sizes, ratings, applications, being extensively hardware oriented, etc).

It is apparent the boating industry and other industries are able to handle “rear end” customization at the dealer level using factory OEM parts and/or third party “will fit” parts. There is no logical reason why this could not be extended to propeller guards. Dealers could select the proper guard based on input from the customer (coupon), the list of approved guards supplied by the drive manufacturer, and selection tools made available by the drive manufacturer and boat builder. The boat dealer could feedback their experiences from fitting the guards to certain boats and propellers to achieve optimal wide open throttle RPMs. That feedback could then be integrated into the propeller guard selection tools to make them even more effective.

Parting Comments on Industry Post Factory Installation of Propeller Guards

Please note – we are not talking about putting propeller guards on all marine drives. We are just saying the industry could select those applications in which they think a conventional guard could improve safety of operation (such as rental houseboats or non-planning pontoon boats), include a “coupon” with those boats at the time of sale to collect the information necessary to select the proper guard, and then make that guard available to the people buying those boat for purchase, for purchase at a discount, or for free depending upon how the industry wishes to handle the matter.

We would also point out that several boat companies are owned by drive companies (like Brunswick). It is no secret to Mercury Marine what kind of boats their drives are going on when they sell them to captive boat companies.

Its not much more of a secret to them when they sell them to independent builders because many have to go through an installation approval process before the will sell them the drives or warranty them. The drive manufacturers know the drive is going to one of the builder’s approved installations.