Amicus Curiae Brief — Burlington Northern Inc. v. Herold

No. 85-186

ae

IN THE

Supreme Court of the United States

OCTOBER TERM, 1985

BURLINGTON NORTHERN, INC.,

Petitioner,

Vv.

KENNE1H A. HEROLD, et al.,

Respondents.

On Petition for a Writ of Certiorari to the

United States Court of Appeals

for the Eighth Circuit

MOTION FOR LEAVE TO FILE A BRIEF AMICUS

CURIAE.AND BRIEF AMICUS CURIAE OF THE

ASSOCIATION OF AMERICAN RAILROADS IN

SUPPORT OF THE PETITION

J. THOMAS TIDD

KENNETH P. KOLSON *

DANIEL SAPHIRE

ASSOCIATION OF

AMERICAN RAILROADS

1920 L Street, N.W.

Washington, D.C. 20036

(202) 835-9236

* Counsel of Record

August 30, 1985

WILSON - EPES PRINTING Co.. INC.

- 789-0096 - WASHINGTON, 0.C. 20001

BEST AVAILABLE COPY

IN THE

Supreme Court of the United States

OCTOBER TERM, 1985

No. 85-186

BURLINGTON NORTHERN, INC.,

- Petitioner,

KENNETH A. HEROLD, et al.,

Respondents.

On Petition for a Writ of Certiorari to the

United States Court of Appeals

for the Eighth Circuit

MOTION OF THE ASSOCIATION OF

AMERICAN RAILROADS FOR LEAVE TO

FILE A BRIEF AMICUS CURIAE

The Association of American Railroads (“AAR”) re-

spectfully moves this Court for leave to file the attached

Brief Amicus Curiae... AAR has limited such requests to

instances where issues of overriding concern to the rail-

road industry are involved and such requests have always

been granted. The Court has generally pei aitted the

1 Petitioner has consented to the filing of the brief. The letter

signifying this consent has been filed with the Clerk. Respondents

withheld consent. The brief is timely filed under the Rules of the

Supreme Court which require filing within the time allowed for

the filing of the brief in opposition (Rule 36.1), which is 30 days

after receipt of the petition by Respondent (Rule 22.1). The

“return receipt” form indicates that Respondent received the pe-

tition on August 5, 1985.

2 See Burlington Northern Railroad Company v. Cosby, No. 84-

1313 (filed March 18, 1985); Southern Pacific Transportation Co.

v. Commercial Metals Co., 456 U.S. 336 (1982); Kassel v. Con-

solidated Freightways Corp., 449 U.S. 897 (1980); Raymond Motor

participation of industry associations in cases such as this,

which involve issues of special concern to the industry as

a whole.®

AAR is the trade association for the nation’s railroads.

Its members employ approximately ninety-four percent of

the workers, operate approximately ninety-two percent of

the trackage, and account for approximately ninety-seven

percent of the freight revenues of all railroads in the

United States AAR represents its members before

courts, agencies and the U.S. Congress when matters of

common concern are at issue.

The decision of the Court of Appeals in this case will

have a great impact on the ability of railroads to make de-

cisions aimed at enhancing the safety of crew members,

pedestrians and motorists. This is an area which has been

of great concern to the AAR® as well as to individual

Transportation, Inc. v. Rice, 434 U.S. 885 (1977); Baltimore &

Ohio Railway v. Jackson, 354 U.S. 943 (1957); Webb v. Illinois

Central Railroad, 353 U.S. 943 (1957).

3 See, e.g., Western Airliies v. California, 53 U.S.L.W. 3484

(U.S. Jan. 7, 1985) (motion of Air Transport Association of Amer-

ica for leave to file brief amicus curiae granted) ; Peick v. Pension

Benefit Guaranty Corp., US. , 104 S. Ct. 1588 (1984)

(American Trucking Associations).

4A listing of the membership of the Association appears at

Appendix A to the attached brief.

5 See, e.g., Comments of Donald M. Tutko (on behalf of AAR)

before the United States Department of Transportation, Federal

Railroad Administration on Freight Car Safety Standards, Defini-

tion of Defective Wheels. FRA Docket No. RSFC-6, Notice No.

12 (1985); Comments of the AAR before the United States De-

partment of Transportation, Federal Railroad Administration on

Control of Alcohol and Drug Use in Railroad Operations. FRA

Docket No. RSOR-6, Notice No. 4 (1984); Comments of the AAR

before the United States Department of Transportation, Federal

Railroad Administration on Proposed Requirement for Displaying

of Alerting Lights by Locomotives at Public Grade Crossings.

FRA Docket No. RSGC-2, Notice No. 3 (1982); Statement of

A. W. Johnston (on behalf of the AAR) before the Federal Rail-

railroads. Because of its holding that non-required safety

devices which have actually been removed from a loco-

motive fall within the requirements of the Boiler Inspec-

tion Act, this case will affect all railroads which have seen

fit to equip their locomotives with safety features which

are not required by federal regulation. The Eighth Cir-

cuit’s opinion calls into question the legal liability of these

railroads for removal of non-required safety equipment,

as well as their ability to rely on FRA regulations in this

area.

Because it represents the industry as a whole the AAR

is in a position to convey the industry’s concern with this

decision and to present factual information which will

underscore these concerns. The consequences of this deci-

sion will be felt by the entire railroad industry, not just

the individual railroad involved in the litigation below.

As an industry trade association, AAR can address more

fully the potential impact of this case on the industry as

a whole than can the parties. The AAR respectfully sub-

mits that its participation as amicus curiae will assist the

Court in resolving this case by providing information

which will make more clear the impact of the decision

below on railroad safety.

Respectfully submitted,

J. THOMAS TIDD

KENNETH P. KOLSON *

DANIEL SAPHIRE

ASSOCIATION OF

AMERICAN RAILROADS

1920 L Street, N.W.

Washington, D.C. 20036

August 30, 1985 * Counsel of Record

road Administration on Track Safety Standards: Miscellaneous

Proposed Amendments, FRA Docket No. RST-3, Notice No. 3

(1982).

TABLE OF CONTENTS

Re SE BE eins eines eteimniniecschaenens

INTEREST OF THE AMICUS CURIAE

SUTRA GO PT ii isin nicseiennsticerenecscenses

I. THE COURT OF APPEALS HAS MISCON-

STRUED THE BOILER INSPECTION ACT

IN A MANNER THAT WILL DISCOURAGE

RAILROAD USE OF OPTIONAL SAFETY

EEE aibchircicnnisnie-sepin scheanadidiosenaincenemiidionsianss

Ii. THE DECISION BELOW CONFLICTS WITH

THOSE OF OTHER CIRCUITS

CIR IE isco ecesnturcsnsnsé-vensensindnabeteneeinisdninselagiammunballins

APPENDIX A: Members of the Association of

American Railroads

APPENDIX B: Statutes and Regulations ...................

la

9a

ii

TABLE OF AUTHORITIES

CASES Page

Crane v. Cedar Rapids & Iowa City Railway Co.,

I I sn Gene sghmencsnnnnmatautannantt 13

Fort Worth & Denver Railway Co. v. Lewis, 693

F.2d 432 (5th Cir. 1982), rehearing denied, 707

aa laduacenenastbtions 2

Grothusen v. National Railroad Passenger Corp.,

603 F.Supp. 486 (E.D. Pa.), aff’d p.c. 751 F.2d

I lab ichaleesdiaaiibn 13, 14

Lilly v. Grand Trunk Railroad Co., 317 U.S. 481

a sascistimasialicabanian 6

Marshall v. Burlington Northern Inc., 720 F.2d

I al eased 14, 15

Napier v. Atlantic Coast Line, 272 U.S. 605

al eluate 3, 6, 16

Southern Railway v. Bryan, 375 F.2d 155 (5th

Cir.), cert. denied, 389 U.S. 827 (1967) ............. 14

Southern Railway Co. v. Lunsford, 297 U.S. 399

ERR Sa ee POR Ee Oe passim

United States v. St. Louis-San Francisco Railway

Co., 572 F.2d 1224 (8th Cir.), cert. denied, 439

I aninaeauaniaan 2

Urie v. Thompson, 337 U.S. 163 (1949) ...00000000.0...... 6, 14

STATUTES

Boiler Inspection Act, as amended, 45 U.S.C. § 22

I ARETE RT OO POET. passim

Department of Transportation Act, Pub. L. No. 89-

I EE ID cs innnnsnbieundenausauenssosass 3

Federal Employers’ Liability Act, 45 U.S.C. §§ 51

TRS LE Se NPE mer 6,138

Federal Railroad Safety Act, 45 U.S. C. $§ 421 et

UTR RE RE Se at NP 15

Safety Appliance Act, 45 U.S.C. gg = fg Saeeereen 13

en Ds acenneeneninanestnsinn 6,7

45 U.S.C. § 34 (1982).......... Ce APRN SR RvR na Dee es 4,6

Re Pr IEE BID os snsssnccncensccncssisacenssennesanens 15

ili

TABLE OF AUTHORITIES—Continued

REGULATIONS Page

a nn oan cnehamaincnieenn 6

Gr cits OUD CITED ooncnccceccnnceccccccecckccaccencee 7

re as Oe I CD ic cacsecctcasxiveccrenccncnsssstcnachane 7

LEGISLATIVE MATERIALS

H.R. Rep. No. 1194, 91st Cong. 2d Sess., reprinted

in 1970 U.S. Code Cong. Ad. News 4105 .............. 15

MISCELLANEOUS

ie ee SE I ii 11

Office of Safety, Federal Kailroad Administration,

U.S. Dept. of Transportation, Accident/Incident

Bulletin No. 153, Calendar Year 1984 (June

EE nae RE pate ROE we Re iaheicban 10

IN THE

Supreme Court of the United States

OCTOBER TERM, 1985

No. 85-186

BURLINGTON NORTHERN, INC.,

Petitioner,

Vv.

KENNETH A. HEROLD, et ai.,

Respondents.

On Petition for a Writ of Certiorari to the

United States Court of Appeals

for the Eighth Circuit

BRIEF AMICUS CURIAE OF THE

ASSOCIATION OF AMERICAN RAILROADS

IN SUPPORT OF THE PETITION

INTEREST OF THE AMICUS CURIAE'

As the trade association for the nation’s railroads, the

Association of American Railroads (“AAR’’)* has a vital

1 Petitioner has consented to the filing of this brief pursuant

to Rule 36 of the Supreme Court rules. Respondents withheld

consent. A motion for leave to file this brief therefore accompanies

the brief.

2 AAR is a voluntary, vwnincorporated, nonprofit association of

railroads operating in the United States, Canada and Mexico. Its

member railroads employ approximately ninety-four percent of

the workers, operate approximately ninety-two percent of the

trackage, and account for approximately ninety-seven percent of

2

interest in the interpretation and administration of fed-

eral legislation pertaining to railroad safety. The AAR

has long been active in assisting in the formulation of

industry views pertaining to railroad safety regulation

and has participated extensively in Congressional hear-

ings and administrative rulemaking proceedings to present

the views of the industry regarding regulatory proposals

affecting railroad safety.* The AAR has also participated

on behalf of the industry in various court proceedings

where the construction of federal safety legislation raise

important issues of industry-wide concern.*

The decision below raises an important issue of great

concern to the railroad industry. In its decision, the

Eighth Circuit, in upholding a district court negligence

award arising from a railroad grade crossing accident,

the freight revenues of all railroads in the United States. A list-

ing of the membership of the Association is attached as Appendix

A to this brief. The Association represents its member railroads

before courts, the U.S. Congress, government agencies and ad-

ministrative tribunals when matters of common concern are at

issue.

3 See, e.g., Comments of Donald M. Tutko (on behalf of AAR)

before the United States Department of Transportation, Federal

Railroad Administration on Freight Car Safety Standards, Defini-

tion of Defective Wheels. FRA Docket No. RSFC-6, Notice No. 12

(1985) ; Comments of the AAR before the United States Depart-

ment of Transportation, Federal Railroad Administration on Con-

trol of Alcohol and Drug Use in Railroad Operations. FRA Docket

No. RSOR-6, Notice No. 4 (1984); Comments of the AAR before

the United States Department of Transportation, Federal Railroad

Administration on Proposed Requirement for Displaying of Alert-

ing Lights by Locomotives at Public Grade Crossings. FRA Docket

No. RSGC-2, Notice No. 3 (1982); Statement of A. W. Johnston

(on behalf of the AAR) before the Federal Railroad Administra-

tion on Track Safety Standards: Miscellaneous Proposed Amend-

ments. FRA Docket No. RST-3, Notice No. 3 (1982).

4 See, e.g., Fort Worth & Denver Ry. Co. v. Lewis, 693 F.2d 432

(5th Cir. 1982), rehearing denied, 707 F.2d 515 (1983); United

States v. St. Louis-San Francisco Ry. Co., 572 F.2d 1224 (8th Cir.),

cert. denied, 439 U.S. 973 (1978) (AAR as amicus).

3

has construed the provisions of one of the principal fed-

eral safety statutes, the Boiler Inspection Act,° as per-

mitting a finding of a statutory violation (and a find-

ing of negligence) based upon a railroad’s removal from

a locomotive of a nonessential safety device that the rail-

road was not required under the Act to install in the

first instance. The decision, which is unprecedented and

in conflict with decisions of this Court and other federal

courts construing the provisions of the Boiler Inspection

Act, will create serious difficulties for the railroad in-

dustry if left unchecked.

Under the Boiler Inspection Act and other relevant

federal statutes,° the Federal Railway Administration

(FRA) is responsible for adopting and administering

rules for the installation and proper maintenance of

essential safety equipment on locomotives. These federal

rules pertaining to essential locomotive equipment have

been held by this Court to “occupy the field” and to fully

preempt state laws purporting to require additional

equipment.’

Many members of the railroad industry, in an effort

to further enhance railroad safety and to gather data

regarding the efficacy and cost-effectiveness of new safety

devices, have voluntarily undertaken to install various

non-essential safety devices on locomotives in addition tc

those federally required under the Boiler Inspection Act.

These devices—none of which has yet been found effec-

tive by the Federal Railroad Administration (FRA) in

reducing accidents—range from the relatively simple and

inexpensive to the complex and costly.

Should the decision of the Eighth Circuit be allowed

to stand and a railroad be held subject to violation of

5 45 U.S.C. § 22 et seq. (1982).

6 Department of Transportation Act, Pub. L. No. 89-670, 80

Stat. 931 (1966).

7 Napier v. Atlantic Coast Line, 272 U.S. 605, 613 (1926).

4

the Boiler Inspection Act (and to tort liability under

state law) for the operation of a locomotive from which

a non-required safety device has been removed, a great

and wholly unwarranted disincentive would be placed

upon the railroad industry with respect to voluntary rail-

road innovation regarding locomotive safety equipment.

If a railroad were uncertain whether, and under what

circumstances, it could remove (even temporarily) a

non-required safety device from a locomotive without

risk of financial penalty under the Boiler Inspection Act *

or liability under state tort law, the railroad would be

far less inclined to experiment with additional, but po-

tentially ineffective or undependable, safety devices than

if it could rely on federal safety regulations to define

clearly its essential locomotive safety equipment obliga-

tions.

Moreover, because the decision below conflicts with de-

cisions of this Court and those of other circuits with re-

gard to the scope of the railroad industry’s obligations

under the Boiler Inspection Act, the uncertainty and lack

of national uniformity fostered by the decision below pro-

vides strong additional grounds for industry-wide con-

cern. The AAR, on behalf of the railroad industry, there-

fore strongly supports the petition for a writ of certi-

orari.

SUMMARY OF ARGUMENT

In the decision below, the Eighth Circuit has found a

railroad subject to violation of the Boiler Inspection Act

(and subject to liability under state tort law) for the

absence of an optional locomotive safety device (an am-

ber rotating beacon) not required by FRA regulations.

The optional device had been initially installed by the

railroad as a voluntary safety measure in excess of FRA

regulations and had been subsequently removed by the

8 Section 9 of the Boiler Inspection Act, as amended, 45 U.S.C.

§ 34 (1982), provides for penalties of up to $2,500 for each viola-

tion of the Act.

5

railroad after malfunction. The Court below reasoned

that once voluntarily installed, the optional device became

an “appurtenance” under the Act which the railroad was

required to maintain upon the locomotive at all times in

proper working condition.

The decision below is unprecedented, contrary to deci-

sions of this Court and other courts, and will cause seri-

ous problems in the implementation of the Boiler Inspec-

tion Act. In no case has liability under the Boiler In-

spection Act ever been premised upon the absence of a

non-required safety device. Indeed, in its decision in

Southern Ry. Co. v. Lunsford, 297 U.S. 398 (1936), this

Court has squarely rejected the predicate for the decision

below—the absolute notion that a carrier “creates its

own standard of safety [under the Act] by the appli-

ances which it places upon its locomotive.” Jd. at 402.

Moreover, the decision below wholly ignores the con-

cern expressed by this Court in Lunsford that the pur-

pose of the Boiler Inspection Act (“avoidance of un-

necessary peril to life or limb’) not be undercut by inter-

pretations of the Act that would discourage voluntary

safety efforts. By subjecting a railroad, otherwise in

full compliance with the Boiler Inspection Act and all

applicable FRA regulations, to financial penalties under

the Act and state tort claims for the subsequent removal

of an optional safety device once voluntarily installed,

the decision below will create a serious disincentive to

the voluntary uze by the railroad industry of non-essen-

tial devices beyond those required by FRA. Because the

decision below will seriously impede voluntary safety

efforts under the Act, and will concomitantly undermine

the preemptive effect of FRA essential equipment regu-

lations in negligence actions under state law, the deci-

sion below merits review by this Court. Further, because

the decision below conflicts with Lursford and relevant

cases in other circuits, the uncertainty and lack of na-

tional uniformity fostered by the decision below provides

strong additional grounds for this Court’s review.

6

I. THE COURT OF APPEALS HAS MISCNSTRUED

THE BOILER INSPECTION ACT IN A MANNER

THAT WILL DISCOURAGE RAILROAD USE OF

OPTIONAL SAFETY EQUIPMENT

Pursuant to the Boiler Inspection Act of 1911, as

amended,’ Congress conferred upon the Interstate Com-

merce Commission (“Commission”) the power to regu-

late railroad locomotives and their “appurtenances,” in-

cluding the authority to require railroads to install par-

ticular safety equipment on locomotives. See Lilly v.

Grand Trunk R. Co., 317 U.S. 481 (1943); Napier v.

Atlantic Coast Line Railroad Company, supra. The Boiler

Inspection Act also imposed a duty upon railroads, en-

forceable by the Commission, to maintain the locomotive

and its appurtenances in “proper condition and safe to

operate in the service to which the same are put.” 45

U.S.C. $23 (1982). The authority set forth in the

Boiler Inspection Act was subsequently transferred to

the Federal Railway Administration (FRA)" which, like

its predecessor, has adopted extensive regulations wit

respect to specific requirements regarding locomotive

safety equipment. 49 C.F.R. pt. 229 (1984). As this

Court has specifically recognized, because of the exten-

sive federal regulation of locomotive safety equipment,

federal equipment requirements under the Boiler In-

spection Act totally occupy the field and preempt state

laws purporting to require additional equipment. Napier

v. Atlantic Coast Line, 272 U.S. at 613.

The court below, in affirming a district court negli-

gence judgment against the Burlington Northern Rail-

® 45 U.S.C. §§ 22 et seq. (1982).

10 A violation of this duty will result in strict liability in suits

brought by railroad workers under the Federal Employers’ Liabil-

ity Act (“FELA”). 45 U.S.C. §§ 51 et seq. (1982); see Urie v.

Thompson, 337 U.S. 163, 188-91 (1949). The Act also provides

for penalties of up to $2,500 for each violation. 45 U.S.C. §34

(1982).

11 See Note 6, supra.

7

road Company (BN) regarding a 1974 North Dakota

grade crossing accident, has found that a violation of the

Boiler Inspection Act, 45 U.S.C. § 23 (1982), and a con-

sequent finding of negligence under state tort law, may

be predicated on the removal from a locomotive for

repair of an optional safety device (an amber rotating

beacon) which the railroad was not required to install

under the Act in the first instance.'*? The court reasoned

that the amber rotating beacon, once affixed, had become

a locomotive “appurtenance”’ which BN was required

under the general provisions of the Act to maintain “in

proper condition and safe to operate” while the locomo-

tive is in use. This decision, which wholly misconstrues

the requirements of the Boiler Inspection Act and under-

cuts the role of federal regulation of locomotive safety

equipment, will have serious adverse effect on railroad

safety efforts with respect to the use of optional loco-

motive safety equipment.

This Court, in construing the requirements of the

Boiler Inspection Act, has been specially careful to avoid

results which would discourage voluntary safety efforts

beyond those required by the Act. The Court has thus

specifically rejected the view that a “carrier creates its

own standard of safety [under the Act] by the appli-

ances which it places on its own locorsctive .. .’,” and

has stressed that Congress did not intend that every ex-

perimental safety device voluntarily placed upon a loco-

motive by a carrier be considered an “appurtenance”

within the strict liability provisions of the Act. Southern

Ry. Co. v. Lunsford, 297 U.S. 399, 402 (1936). To so

hold, this Court instructed, “would hinder commendable

efforts to better conditions and tend to defeat the evident

purpose—avoidance of unnecessary peril to life or limb.”

Id. at 402. As held by this Court in Lunsford:

12 At the time of the accident the BN locomotive at issue was

equipped with a twin-beam headlight and a whistle, and accord-

ingly fully complied with all relevant FRA regulations pertaining

to required warning devices. See 49 C.F.R. § 230.231(a) (1974);

49 C.F.R. § 230.234 (1974).

8

Whatever in fact is an integral or essential part of a

completed locomotive, and all parts or attachments

definitely prescribed by lawful order of the Interstate

Commerce Commission, are within the statute. But

mere experimental devices which do not increase the

peril, but may prove helpful in an emergency, are

not....

Id.

The finding of the court below—that the optional am-

ber rotating beacon removed by BN from its locomotive

prior to the accident should be treated as an “appurte-

nance” under the Act—is inccnsistent with the principles

enunciated by this Court in Lunsford in at least two

essential respects.

First, the court below has essentially predicated lia-

bility under the Boiler Inspection Act upon the absence

from a locomotive of an optional safety device that had

been previous installed. The BN locomotive at issue was

not found to be deficient in its equipment in any respect

other than the absence of the optional amber rotating

beacon and was thus otherwise as “in proper condition

and safe to operate” under the Boiler Inspection Act as

those locomotives in BN’s fleet (and the fleets of other

major railroads) that had never been originally equipped

with the optional device.* For the court below to have

premised BN’s liability under the Boiler Inspection Act

13 In addition, the court below did not specifically consider, but

apparently implicitly rejected, the view that the amber rotating

light would otherwise qualify as an experimental device under

Lunsford. The evidence of record, however, was clearly sufficient

to support the conclusion that the beacon was an experimental

device within the meaning of Lunsford. See Appendix to Petition

for Certiorari, at 35a-39a.

14 Of BN’s Fleet of 2,500 locomotives in 1974, in excess of 400

were not equipped with the amber rotating beacon or other op-

tional alterting lights. Moreover, at the time of the accident five

major railroads in the United States operated in full compliance

with the Boiler Inspection Act without optional alerting lights.

Indeed, many locomotives in current service are operating without

optional alerting lights in full compliance with the Act.

9

for the absence of a non-required safety device solely

upon BN’s previous voluntary installation of the equip-

ment elevates the motion that a carrier “creates its own

standard of safety under the Act’’—-a concept rejected in

Lunsford—to the most illogical extreme. The optional

device had a status even less than the “experimental”

device in Lunsford; it was not even upon the locomotive.

Second, the decision below wholly ignores the concern

expressed by this Court in Lunsford that the purpose of

the Boiler Inspection Act (“avoidance of unnecessary

peril to life or limb’) not be undercut by interpretations

of the Act that would unnecessarily discourage voluntary

safety efforts. Indeed, it is difficult to imagine a mis-

construction and misapplication of the Act more unneces-

sarily disruptive of voluntary safety efforts with respect

to use of optional equipment than the decision below.

The railroad industry, through the voluntary initiative

of individual member railroads, has long experimented

with the use of different types of optional safety devices

on locomotives and railroad cars in an effort to improve

railroad safety and generate data from which the eflicacy

and cost-effectiveness of particular safety equipment may

be determined. The benefits of these voluntary safety

efforts directly flow to the public, both through increased

railroad expenditure on optional safety equipment that

may ultimately prove effective in reducing accidents and

through the generation of operational data which may

be used by the industry and the FRA as a basis for

effecting changes in mandatory industry safety equip-

ment standards.

These optional safety devices, like the emergency air

brake mechanism (‘“Wright’s Little Watchman’) dis-

cussed by this Court in Lunsford and the amber rotating

beacon at issue in the instant case, are generally of a

character, as described in Lunsford, as would “not in-

crease the peril, but may prove helpful in an emergency.”

Id. at 402.

10

Currently, for example, several members of the rail-

road industry are experimenting with use of one or more

of the following locomotive safety devices not required by

FRA regulations in an effort to reduce the number and

severity of grade crossing accidents: strobe, oscillating

or beacon lights; engineer alerter systems; event record-

ers; reflectorized tape or other reflective material; snow-

plow fixtures; special brake holding mechanisms; addi-

tional horns or other audible warning devices exceeding

FRA standards; minicomputer devices; brake system air

flow gauges; train overspeed controls; engine cut-off

mechanisms; various foot pedal safety control devices;

and cab mirrors.’®

These voluntary industry efforts with respect to the

use of optional equipment, however, often do not prove

productive. A particular category or type of safety de-

vice (like the “Little Watchman” in Lunsford) may prove

ineffective or undependable in long-term service or too

prone to breakage or malfunction to warrant continued

use. For other devices evidence of effectiveness may be

insufficient or too inconclusive to warrant expenditures

that may be more fruitfully employed in more promising

voluntary safety measures.

These prospects are well illustrated by the instant case.

Tue testimony established that the rotating beacon that

BN had removed from its locomotive for repair was a

new model which had experienced numerous failures be-

cause of circuitry that could not withstand the stress of

15 Railroad grade crossing accidents are a serious industry prob-

lem of national concern. According to FRA statistics, 2,826 people

were injured, and 639 killed, in grade crossing accidents in 1984.

Office of Safety, Federal Railroad Administration, U.S. Dept. of

Transportation, Accident/Incident Bulletin No. 158, Calendar Year

1984, at 23-24 (June 1985).

16 Numerous other optional devices, such as bumper pads, have

been instailed in an effort to improve the safety of raiiroad

employees.

11

use, and that BN subsequently used a different model on

many of its trains.17 Indeed, with regard to the effec-

tiveness of alerting lights in general, the FRA specifi-

cally commenced a rulemaking proceeding in 1978 to con-

sider whether to require the railroad industry to install

a rotating beacon of the kind used in the instant case or

other type of alerting light. After considering extensive

data on the issue, the FRA terminated the proceedings in

1983 after finding that the evidence did not support the

proposition that additional alerting lights were effective

in reducing the incidence of grade crossing accidents. 48

Fed. Reg. 20257 (1983).

Industry survey with regard to other optional safety

equipment currently in use further confirms widespread

problems experienced by individual railroads which may

result in removal or replacement of particular types of

opitonal equipment. Reflectorized tape has a tendency to

peel and, like other reflectorized material, is difficult and

expensive to maintain in clean condition under general

conditions of use. Accordingly, some railroads which have

previously installed such optional reflectorized devices

have removed or are in the process of removing or re-

placing them with other materials. Certain types or mod-

els of alerting lights have been found to be undependable

from a mechanical standpoint. These too are in the proc-

ess of being removed or replaced with other types of

alerting lights by individual railroads. (Based upon the

FRA repurt casting doubt upon the effectiveness of alert-

ing lights, at least one major railroad has determined to

remove, rather than replace, existing alerting lights when

in need of repair.) Problems with other devices have also

been experienced, and all of the devices are currently

either under study by individual members of the railroad

industry as to their effectiveness and maintenance charac-

teristics, or have been studied and removed by individual

railroads for various reasons after initial installation.

17 Appendix to Pet. at 35a-39a.

12

If the decision of the court below is left undisturbed,

and a railroad held subject to penalty for violation of the

Boiler Inspection Act (and to consequent liability under

state tort law) for the absence from a locomotive of an

optional safety device once previously installed, there

will be a profound and wholly unnecessary disincentive

placed upon the railroad industry with regard to the use

of optional safety equipment. A railroad will be com-

pelled to take into account in considering the initial use

of optional equipment not only whether a particular op-

tional device appears promising, but also whether, and to

what extent, the railroad will be free to remove or re-

place the device without further financial penalty should

initial expectations not be fulfilled. Indeed, many of the

optional safety devices currently being installed involve

large expenditures of funds,’* and a railroad may be

wholly unwilling to initially commit such resources if it

could not be assured of the opportunity to discontinue or

reduce expenditures by discontinuing use of the device

should operating results and financial conditions prudently

indicate. Moreover, as a further consequence of the de-

cision below, each railroad will also be compelled to take

into account the possibility that it may be forced to re-

move from fleet service numerous locomotives, otherwise

in full compliance with the Boiler Inspection Act, for the

length of time it may take to repair or replace a mal-

functioning optional device (which device otherwise could

generally be simply and safely removed from the locomo-

tive for repair or replacement as in the instant case).

The consequences of the decision below, which can only

have the effect of discouraging voluntary use of optional

18 At least one railroad is currently in the process of installing

(over a three-year period) engineer alerter devices on its fleet

(approximately 2400 locomotives). The alerter devices cost ap-

proximately $2,480 per locomotive to purchase and install. Event

recorders (which cost approximately $5,000 each to purchase and

install) have also been installed by at least one railroad upon a

substantial part (1000 locomotives) of its fleet.

13

safety devices by the railroad industry contrary to the

purpose of the Boiler Inspection Act, should not be left

unchecked. This Court should make clear, pursuant to the

principles established in Lunsford, that a railroad may

remove from a locomotive any optional safety device not

required by FRA regulations without fear of being sub-

ject to violation of the Boiler Inspection Act (and conse-

quent state tort liability) for the removal of such equip-

ment. As recognized by this Court in Lunsford, it is

Congress’ intention under the Act that the FRA, and not

individual voluntary actions of railroads, determine man-

datory essential equipment obligations under the Act.

II. THE DECISION BELOW CONFLICTS WITH THOSE

OF OTHER CIRCUITS

The decision of the court below, which subjects a rail-

road to liability under the Boiler Inspection Act and state

tort law based upon the absence from a locomotive of an

optiona: safety device not required by FRA regulations,

is not only unprecedented, but also in conflict with the

decisions in other circuits.

The decision is directly contrary to a decision in the

Third Circuit, Grothusen v. National R.R. Passenger

Corp., 603 F.Supp. 486 (E.D. Pa.), aff'd mem. 751 F.2d

376 (3d Cir. 1984), dealing with a comparable issue per-

taining to federal safety regulation. In Grothusen, a rail-

road employee brought an action under the Federal Em-

ployers’ Liability Act, 45 U.S.C. § 51 et seq., alleging that

the railroad had violated the Safety Appliance Act

(SAA)," a railroad safety statute applicable to railroad

equipment comparable to the Boiler Inspection Act, by the

19 45 U.S.C. §§ 1 et seq. The SAA was originally enacted in 1893

and, similar to the Boiler Inspection Act, extensively regulates the

installation and use of safety equipment on railroad cars. Viola-

tion of the SAA, similar to violation of the Boiler Inspection Act,

results in strict liability in a FELA case. See Crane v. Cedar

Rapids & lowa City Railway Co., 395 U.S. 164, 166 (1969).

14

removal from a railroad car of a curved .andrail which

the railroad had voluntarily installed in excess of FRA

handrail requirements. The plaintiff employee argued

that even though the curved handrail was not required by

FRA regulations, the railroad was nevertheless liable un-

der the SAA for removal of the optional safety equip-

ment. The district court, in a decision affirmed by the

court of appeals, squarely rejected the plaintiff’s argu-

ment on the grounds that the construction sought would

discourage voluntary safety efforts under the SAA:

By placing these rails upon the car Amtrak took ac-

tion that is beyond what is requirea by the SAA.

To impose liability upon defendant when one of these

existing measures is later removed would in prac-

tieal effect deter railroads from ever taking safety

actions beyond the minimum requirement of the SAA,

thereby creating a greater risk for the employees.

Such a result would be anomalous in light of the pur-

pose behind this Act, which is to promote the safety

of railroad employees. . . .

Id. at 489.

Although Grothusen specifically involved the construc-

tion of a federal safety statute other than the Boiler In-

spection Act, the reasoning and result of that decision

are directly applicable to Boiler Inspection Act cases,”°

and the two decisions will undoubtedly create conflicting

standards for federal (and state) courts regarding pend-

ing and future Boiler Inspection Act cases. Intervention

of this Court is therefore necessary to interdict the con-

flicting guidance and unnecesszry litigation that will re-

sult from the decision below.

The decision below is also in essential conflict with a

Ninth Circuit decision, Marshall v. Burlington Northern,

2° See Urie v. Thompson, 337 U.S. 163, 188-90 (1949): Southern

Railway v. Bryan, 375 F.2d 155, 158 (5th Cir.) (Boiler Inspection

Act and Safety Appliance Act must be construed in pari materia),

cert. denied, 389 U.S. 827 (1967).

15

Inc., 720 F.2d 1149 (1983), construing the preemptive

effect of mandatory federal equipment regulations under

the Boiler Inspection Act. In Marshall, the p!aintiff con-

tended that a railroad could be held liable under state

negligence law for the absence of an optional safety de-

vice (an alerting light) not required by FRA regula-

tions. The Ninth Circuit, in rejecting this contention

based upon the preemptive effect of federal regulations,

held that a railroad which has fully complied with FRA

essential equipment regulations has “complied as a matter

of law” with its duty under the Boiler Inspection Act to

provide essential safety equipment and cannot be held

liable in negligence for the absence of additional equip-

ment. Jd. at 1153.

In direct contrast to Marshall, the court below has

found that a railroad may be found in violation of the

Boiler Inspection Act and subject to negligence liability

under state law for the absence of a non-required safety

device. The two decisions are, in essential respects, ir-

reconcilable, and the conflicting holdings will lead to fur-

ther confusion in federal standards in the absence of

intervention by this Court.

Moreover, the nature of the conflict is of serious con-

cern. Because the decision below would permit a rail-

road’s essential equipment obligations to be predicated

upon the potentially conflicting judgment of federal and

state negligence juries rather than upon the certainty of

uniform federal regulation as contemplated by Congress,”

“1 In enacting in 1970 the Federal Railroad Safety Act, Congress

specifically reaffirmed the preemptive effect of the Boiler Inspection

Act. H.R. Rep. No. 1194, 91st Cong. 2d Sess &, 10-11, 16, re-

printed in 1970 U.S. Code Cong. and Ad. News at 4105, 4108, 4113-

14. The 1970 legislation also specifically set forth federal policy

with respect to other areas of safety regulation that “laws, rules,

regulations, orders, and standards relating to railroad safety be

nationally uniform to the extent practicable.” 45 U.S.C. § 434

(1982). Such uniformity is essential because the railroad industry

16

the decision below has the potential to undercut the pre-

emptive effect of federal regulations—on which the in-

dustry has relied **—and cause serious disruption to fed-

eral administration of the Boiler Inspection Act. The de-

cision of the Court below therefore warrants immediate

correction by this Court.

CONCLUSION

For the foregoing reasons, the Court should grant the

petition for certiorari. Alternatively, the Court should

summarily reverse the decision below on the authority of

Southern Railway v. Lunsford, 297 U.S. 398 (1936) and

Napier v. Atlantic Coast Line Railroad, 272 U.S. 605,

612-13 (1926).

Respectfully submitted,

J. THOMAS TIDD

KENNETH P. KOLSON *

DANIEL SAPHIRE

ASSOCIATION OF

AMERICAN RAILROADS

1920 L Street, N.W.

Washington, D.C. 20036

* Counsel of Record

August 30, 1985

i

is interstate in character and a particular railroad passes through

many different state and local jurisdictions in the ordinary course

of business.

22 AAR has consistently participated in FRA rulemaking pro-

ceedings on behalf of the industry on the premise that these regu-

lations would provide clear, uniform standards with respect to re-

quired equipment.

APPENDICES

la

APPENDIX A

MEMBERS OF THE ASSOCIATION

OF AMERICAN RAILROADS

FULL MEMBER ROADS (U.S. LINES)

Akron, Canton & Youngstown Railroad Company

Alton & Southern Railroad Company

Atchison, Topeka & Santa Fe Railroad Company

Baltimore & Ohio Railroad Company

Curtis Bay Railroad Company

Staten Island Railroad Corporation

Baltimore & Ohio Chicago Terminal Railroad Company

Bangor & Aroostook Railroad Company

Van Buren Bridge Railroad

Belt Railway Company of Chicago

Bessemer & Lake Erie Railroad Company

Birmingham Southern Railroad Company

Burlington Northern Railroad Company

[Canadian Pacific Limited—lines operated in U.S.]

Canadian Pacific lines in Maine

Canadian Pacific lines in Vermont

Chesapeake & Ohio Railway Company

Covington & Cincinnati Elevator Railroad &

Transfer & Bridge Company

Chicago & Illinois Midland Railway Company

Chicago & North Western Transportation Company

Chicago & Western Indiana Railroad Company

Chicago, Milwaukee, St. Paul & Pacific Railroad Company

Colorado & Southern Railway

Consolidated Rail Corporation

2a

Denver & Rio Grande Western Railroad Company

Detroit & Mackinac Railway Company

Duluth, Missabe & Iron Range Railway Company

Elgin, Joliet & Eastern Railway Company

Forth Worth & Denver Railway

Galveston, Houston & Henderson Railroad Company

[Grand Trunk Corporation—and other lines in the US.

indirectly controlled by the Canadian National Rail-

ways]:

Grand Trunk Western Railroad Company

Detroit, Toledo & Ironton Railroad Company

Central Vermont Railway, Inc.

Duluth, Winnipeg & Pacific Railway Company

[Canadian National Railways] :

Lines in Michigan

Lines in New England

Lines in New York

Lines in Vermont

Green Bay & Western Railroad Company

Houston Belt & Terminal Railway Company

Illinois Central Gulf Railroad Company

Chicago & Illinois Western Railroad Company

Waterloo Railroad

Kansas City Southern Railway Company

Arkansas & Western Railway Company

Fort Smith & Van Buren Railway Company

Kansas & Missouri Railway & Terminal Railroad

Kentucky & Indiana Terminal Railroad

Lake Superior & Ishpeming Railroad Company

Lake Terminal Railroad Company

3a

Louisiana & Arkansas Railway Company

McCloud River Railroad Company

McKeesport Connecting Railroad Company

Maine Central Railroad Company

Portland Terminal Company

Manufacturers Railway Company

Metro North Commuter Railroad Company

Missouri-Kansas-Texas Railroad Company including

Beaver, Meade & Englewood Railroad Company

Missouri Pacific Railroad Company

Brownsville & Matamoros Bridge Terminal Company

Chicago Heights Terminal Transfer Company

Doniphan, Kensett & Searcy Railway Company

Weatherford, Mineral Wells and

Northwestern Railway Company

National Railroad Passenger Corporation (AMTRAK)

Newburgh & South Shore Railway Company

Norfolk & Western Railway Company

Chesapeake Western Railway Company

Lake Erie & Fort Wayne Railroad Company

Lorain & Western Virginia Railway Company

New Jersey, Indiana & Illinois Railroad Company

Norfolk, Franklin & Danville Railway Company

Peoria & Pekin Union Railroad Company

Pittsburgh & Shawmut Railroad Company

Pittsburgh & Lake Erie Railroad Company

Montour Railroad Company

Youngstown & Southern Railway Company

Prescott & Northwestern Railroad Company

4a

Richmond, Fredericksburg & Potomac Railroad Company

St. Louis Southwestern Railway Company

Seaboard System Railroad, Inc.

Gainesville Midland Railroad Company

Soo Line Railroad Company

Sault Ste. Bridge Company

Southern Pacific Transportation Company

Holton Inter-Urban Railway Company

Northwestern Pacific Railroad Company

Petaluma & Santa Rosa Railroad Company

Visalia Electric Railroad Company

Southern Railway System

Alabama Great Southern Railroad Company

Algers, Winslow & Western Railway Company

Atlantic & East Carolina Railway Company

Camp Lejeune Railway Company

Carolina and Northwestern Railway Company

Central of Georgia Railroad Company

Cincinnati, New Orleans &

Texas Pacific Railway Company

Georgia Northern Railway Company

Georgia Southern & Florida Railway Company

Interstate Railroad Company

Live Oak, Perry & South Georgia Railway Company

Louisiana Southern Railway Company

State University Railroad Company

Tennessee, Alabama & Georgia Railway Company

Tennessee Railway Company

Texas Mexican Railway Company

5a

Union Pacific Railroad Company

Spokane International Railroad Company

Mt. Hood Railway Company

Union Railroad Company ( Pittsburgh)

Vermont Railway, Inc.

Western Maryland Railway Company

Western Pacific Railroad Company

Sacramento Northern Railway Company

Tidewater Southern Railway Company

Western Railway of Alabama

Atlanta & West Point Rail Road Company

Winston-Salem Southland Railway

High Point, Thomasville & Dentor Railroad

SPECIAL CANADIAN AND MEXICAN MEMBER ROADS

CANADIAN LINES (in Canada)

Algoma Central Railway

British Columbia Hydro & Power Authority

British Columbia Railway

Canadian National Railways

Canadian Pacific Limited

Ontario Northland Railway

Toronto, Hamilton & Buffalo Railway

White Pass & Yukon Corp. Ltd.

MEXICAN LINES (in Mexico)

Chihuahua Pacific Railway Company

[Direction General de Ferrocarriles en Operacion] :

Ferrocarril Sonora-Baja California, S.A. de C.V.

Ferrocarriles Unidos del Sureste, S.A. de C.V.

Ferrocarril del Pacifico, S.A. de C.V.

National Railways of Mexico

6a

ASSOCIATE MEMBERS

Alaska Railroad

Aliquippa & Southern Railroad Company

American Refrigerator Transit Company

Apalachicola Northern Railroad Company

Belfast & Moosehead Lake Railroad Company

Boston & Maine Corporation

Springfield Terminal Railway

California Western Railroad

Centromen Puru Incorporated

Chestnut Ridge Railway

Chicago Short Line Railwa;’ Company

Chicago South Shore & South Bend Railroad

Chicago, West Pullman & Southern Railroad Company

Chilean State Railways (CHILE)

Cities Service Company Railroad

Cliffs Western Australian Mining Co. Pty Ltd.

(AUSTRALIA)

Colorado & Wyoming Railway Company

Cuyahoga Valley Railway Company

Dardenelle & Russellville Railroad Company

Delaware & Hudson Railway Company

Greenwich & Johnsville Railway Company

Delray Connecting Railway Company

Deveco Railway (Cape Breton Dev. Corp.—Coal Div.)

(CANADA) :

Duluth & Northwestern Railroad Company

East Erie Commercial Railroad

East Jersey Railroad & Terminal Company

Kast St. Louis Junction Railroad Company

Ta

Empresa Minera Del Centro Del P=: « Gailways (PERU)

Essex Terminal Railway (CANADA)

Fepasa-Ferrovia Paulista (BRAZIL)

Fruit Growers Express Company

Genesee & Wyoming Railroad Company

Grafton & Upton Railroad Company

Graysonia, Nashville & Ashdown Railroad Company

Great Western Railway Company

Hamersley Iron Pty Ltd. (WESTERN AUSTRALIA)

Hartford & Slocomh Railroad Company

Hillsdale County Railway Company, Inc.

India, Gov’t. of: Ministry of Railways (INDIA)

Japanese National Railways (JAPAN)

Korean National Railroad (KOREA)

LaSalle & Bureau County Railroad Company

Lenawee County Railroad Company, Inc.

Long Island Rail Road Company

Louisiana & North West Railroad Company

Manufacturers’ Junction Railway Company

Maryland & Pennsylvania Raiiroad Company

Metro North Commuter Railroad Company

Michigan Northern Railway Company, Inc.

Middletown & Hummelstown Railroad Company

Minnesota, Dakota & Western Railway Company

Monongahela Connecting Railroad Company

New Orleans Public Belt Railroad

Northeast Illinois Railroad Corporation

Pacific Fruit Express Company

Pearl River Valley Railroad Company

8a

Pickens Railroad-National Railway Utilization Corp.

Port Authority of New York & New Jersey (The)

Providence & Worcester Company

Public Transport Commission of New South Wales

(AUSTRALIA)

Rede Ferroviaria Federal S.A. (BRAZIL)

River Terminal Railway Company

Roberval & Saguenay Railway Company (CANADA)

Roscoe, Snyder & Pacific Railway Company

San Diego & Arizona Eastern Transportation Company

Sierra Railroad Company

Somerset Railroad Corporation

South African Railways

(REPUBLIC OF SOUTH AFRICA)

Southern Indiana Railways, Inc.

Spanish National Railways (RNFE) (SPAIN)

Taiwan Railway Administration

(REPUBLIC OF CHINA)

Texas & Northern Railway Company

Upper Merion & Plymouth Railroad Company

Victoria A Minas Railway (BRAZIL)

Wabush Lake Railway Ltd. (CANADA)

Warwick Railway Company

Washington Terminal Company

Yancey Railroad Company

9a

APPENDIX B

STATUTES

Section 2 of the Boiler Inspection Act, as amended, 45

U.S.C. § 23 (1982), provides:

It shall be unlawful for any carrier to use or per-

mit to be used on its line any locomotive unless said

locomotive, its boiler, tender, and all parts and ap-

purtenances thereof are in proper condition and safe

to operate in the service to which the same are put,

that the same may be employed in the active service

of such carrier without unnecessary peril to life or

limb, and unless said locomotive, its boiler, tender,

and all parts and appurtenances thereof have been

inspected from time to time in accordance with the

provisions of sections 22 to 29 and 31 to 34 of this

title and are able to withstand such test or tests as

may be prescribed in the rules and regulations here-

inafter provided for.

Section 202(a) of the Federal Railroad Safety Act of

1970, as amended, 45 U.S.C. $ 431/a) (1982), provides:

The Secretary of Transportation ‘hereafter in

this subchapter referre’ to as the “Secretary”) shall

(1) prescribe, as necessary, appropriate rules, regu-

lations, orders, and standards for all areas of rail-

road safety supplementing provisions of law and

regulations in effect on October 16, 1970, and (2)

conduct, as necessary, research, development, testing,

evaluation, and training for all areas of railroad

safety. However, nothing in this subchapter shall

prohibit the bargaining representatives of common

carriers and their employees from entering into col-

lective bargaining agreements under the Railway

Labor Act [45 U.S.C. 151 et seq.], including agree-

ments relating to qualifications of employees, which

are not inconsistent with rules, regulations, orders,

10a

or standards prescribed by the Secretary under this

subchapter. Nothing in this subchapter shall be con-

strued to give the Secretary authority to issue rules,

regulations, orders, and standards relating to quali-

fications of employees, except such qualifications as

are specifically related to safety.

Section 205 of the Federal Railroad Safety Act of 1970,

45 U.S.C. § 434 (1982), provides:

The Congress declares that laws, rules, regulations,

orders, and standards relating to railroad safety

shall be nationally uniform to the extent practicable.

A State may adopt or continue in force any law,

rule, regulation, order, or standard relating to rail-

road safety until such time as the Secretary has

adopted a rule, regulation, order, or standard cover-

ing the subject matter of such State requirement. A

State may adopt or continue in force an additional

or more stringent law, rule, regulation, order, or

standard relating to railroad safety when necessary

to eliminate or reduce an essentially local safety

Kazard,.and when not incompatible with any Federal

law, rule, regulation, order, or standard, and when

not creating an undue burden on interstate com-

merce.

REGULATIONS

49 C.F.R. § 230.231(a) (1974), which was in effect at

the time of the accident, provided:

Road locomotives. Each locomotive used in road

service between sunset and sunrise shall have a head-

light which shall afford sufficient illumination to

enable a person in the cab of such locomotive who

possesses the usual visual capacity required of loco-

motive enginemen, to see in a clear atmosphere, a

dark, object as large as a man of a average size

standing erect at a distance of at least 800 feet

ahead and in front of such headlight; and such head-

light must be maintained in good condition.

Wie ee

lla

49 C.F.R. § 230.234 (1974), which was in effect at the

time of the accident, provided:

Each locomotive shall be provided with a suitable

whistle, or its equivalent, so arranged that it may be

conveniently operated by the engineer or motorman

from his position in the cab.