Opposition Brief — Bailey v. Grand Trunk Lines New England

Supreme Court, U.S.

FILED

(2)

| JUL 15 B87

JOSEPH F. SPANIOL, JR. -

No. 86-1980

—CLERK

In The

Supreme Court of the United States

October Term, 1986

4.

ww

EILEEN BAILEY,

Petitioner,

Vs.

GRAND TRUNK LINES NEW ENGLAND,

CANADIAN NATIONAL RAILWAY,

MIDLINE DIVISION, ST. LAWRENCE REGION,

Respondents.

ra’

Vv

BRIEF IN OPPOSITION TO PETITION FOR

WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

ra’

Vv

CLARKE A. Grave, Esq.*

Grave. & SHea, Of Counsel

Rosert B. HeMtey, Esq.

Dennis R. Pearson, Esa.

109 So. Winooski Ave.

P.O. Box 1049

Burlington, VT 05402

(802) 658-0220

Attorneys for Respondent

*Counsel of Record

COCKLE LAW BRIEF PRINTING CO., (800) 225-6964

or call collect (402) 342-2831

QUESTIONS PRESENTED

1. Was the Court of Appeals for the Second Circuit

correct in holding, as has this Court and all other Courts of

Appeal to consider the question, that the Foreign Sov-

ereign Immunity Act (‘‘FSIA’’) is the sole source of sub-

ject matter jurisdiction over Defendants covered by the

Act?

2. Was the Court of Appeals for the Second Circuit

correct in finding no conflict between the express lan-

guage of the FSIA which mandates a non-jury trial in all

cases to which it applies, and the Federal Employers Lia-

bility Act (‘‘FELA’’) which provides for a jury trial

only by inference and implication?

3. Was the Court of Appeals for the Second Circuit

correct in refusing, on the facts of this case, to reverse

the trial court and itself enter judgment for Plaintiff on

the issue of liability, in order to give the trial judge as

the finder of fact an opportunity to reassess the record

in light of the Court of Appeals’ discussion and instruc-

tions?

TABLE OF CONTENTS

Page

STATEMENT OF THE CASE . 1

FS it} i |) eeerennee = siete:

I. PLAINTIFF WAS NOT ENTITLED TO

TRIAL BY JURY IN THE DISTRICT COURT 7

II. PLAINTIFF IS NOT ENTITLED TO JUDG-

MENT AS A MATTER OF LAW ON LIA-

| i) yp nanan mtunrmuls Nicki eke snus 10

+1 Le FT 5 | a nenieeneen eeonrors <cileaondiaeeaigilen Ceasar! 11

iii

TABLE OF AUTHORITIES

Page

CasEs

Arango v. Guzman Travel Advisors, 761 F.2d 1527

(11th Cir.), cert. denied, — U.S. —, 106 S.Ct. 408,

88 L.Ed.2d 359 (1985) . 8

Bailey v. Grand Trunk Lines, 805 F.2d 1097 (2d

Sea et a oar neem 1,8

Goar v. Compania Peruana de Vapores, 688 F.2d

417 (Sth Cir. 1982) .. _ 8

McKeel v. Islamic Republic of Iran, 722 F.2d 582

(9th Cir. 1983), cert. denied, 469 U.S. 880, 150

S.Ct. 243, 83 L.Ed.2d 182 (1984) ..... 8

Parden v. Terminal Railway, 377 U.S. 184, 12

L.Ed.2d 233, 84 S.Ct. 1207 (1964) 9

Rex v. Cia. Peruana de Vapores, 660 F.2d 61

(3d Cir. 1981), cert. denied, 456 U.S. 926, 102

S.Ct. 1971, 72 L.Ed.2d 441 (1982) 8

Ruggiero v. Compania Peruana de Vapores,

639 F.2d 872 (2d Cir. 1981) 6, 9

Verlinden B.V. v. Central Bank of Nigeria,

461 U.S. 480, 76 L.Ed.2d 81, 103 S.Ct. 1962 (1983) 7, 8, 9

Williams v. Shipping Corp. of India, 653 F.2d

875 (4th Cir. 1981), cert. denied, 455 U.S. 982,

102 S.Ct. 1490, 71 L.Ed.2d 691 (1982) 20. s

STATUTES

LF AES eee an no 1

28 U.S.C. § 1602-11 .

| TExtT

1 Moore’s Fed. Practice, §.066[44] 700.180 (1985

I a aa ds led arin aeiec oneness 9

STATEMENT OF THE CASE

The principal legal question raised in this case is the

trial court’s granting of Defendant Canadian National

Railway’s (‘‘CN’’) motion to strike Plaintiff’s jury de-

mand pursuant to the Foreign Sovereign Immunities Act,

28 U.S.C. §§ 1330 and 1602-11 (‘‘FSIA’’). The trial judge!

then proceeded to hear the case without a jury, and en-

tered findings of fact and conclusions of law pursuant

to Rule 52, Fed.R.Civ.P. That aspect of the case was af-

firmed in all respects by the Court of Appeals for the

Second Circuit. Bailey v. Grand Trunk Lines, 805 F.2d

1097 (2d Cir. 1986); see Petition, Appendix A. Before

turning to a summary of the facts concerning the derail-

ment and accident which led to the death of Plaintiff’s

decedent, a brief review follows of the facts regarding the

applicability of the FSIA.

CN is a ‘‘Crown Corporation’’ whose shares of stock

are wholly owned by the Federal Government of Canada

(technically, by Her Majesty the Queen in right of Can-

ada). CN was incorporated in Canada in 1922 pursuant

to a Special Act of Parliament passed in 1919, to consoli-

date and amalgamate several railways then either already

owned by the Canadian government or in such dire finan-

cial straits that they soon would be. Included among the

constituent railways merged into CN in 1922 was the rail-

road line which runs from a junction on the CN mainline

east of Montreal, through Vermont, New Hampshire and

Maine to Portland. This line is known in CN’s modern

1. Hon. Franklin S. Billings, Jr., former Chief Justice of

the Vermont Supreme Court.

plan of organization as the Berlin Subdivision because

its regional station headquarters are in Berlin, N.H. The

Berlin Subdivision is operated directly by CN, by CN

employees using CN rolling stock—unlike CN’s other

wholly-owned United States rail operations, principally

in the midwest, which are operated as subsidiary com-

panies duly incorporated in various states of the United

States under the Grand Trunk Corporation? Plaintiff

admitted in the trial court that CN’s principal place of

business was located in Montreal, Quebee where it main-

tains its corporate headquarters.

Plaintiff’s decedent Jeffrey Bailey (‘‘Bailey’’) was

employed by CN from 1972 through June 1983, as a laborer

and machine operator on the Berlin Subdivision.’ Bailey

lived in Island Pond, Vermont and worked out of CN’s

regional station in Berlin, N.H. On June 3, 1983, Bailey

was a co-operator of a brushcutting machine, together

with Ronald Reindean (‘‘Reindeau’’), another CN em-

ployee. Bailey and Reindeau had been operating this ma-

2. The terms “Grand Trunk Lines New England,” “Midline

Division” and “St. Lawrence Region’ used by Plaintiff in the

caption of this case are historical anachronisms that CN has

not used for the Berlin Subdivision for more than 30 years. In

any event, the trial court and the court below both found that

CN is the only relevant Defendant because it is the only “De-

fendant’”’ to appear and Plaintiff never moved for default judg-

ment against any others. See 805 F.2d at 1100 & fn. 2.

3. Reference is made to the Findings of Fact by the Dis-

trict Court, see Petition, Appendix C, at 34a-40a. Although the

Court of Appeals disagreed with the trial judge’s legal conclu-

sion that the Canadian National Railway was not negligent in

two respects discussed infra, and vacated and remanded for

further proceedings and reconsideration of those two issues,

the Court of Appeals did not disturb any of the trial court's

specific findings of fact. See Petition, Appendix A, at 9a-13a.

chine since it had arrived in the United States in March

1983, after a winter-long overhaul at CN’s maintenance

facilities in Quebec. The machine remained in good, work-

able condition during its stay in the United States, except

for normal maintenance, and was fully operable on June

3, 1983. Before beginning use of this particular machine

in March 1983, Bailey and Reindeau had received 214

days of instruction and training on the machine from a

CN foreman.

The brusheutter was capable of operating either on

the rails or on the highway; when used on the rails two

sets of hydraulically operated flanged wheels kept the ma-

chine aligned on the tracks, while all propulsion, braking

and steering was through the rubber wheels in either mode

since the rubber wheels would rest on top of the track.

However, when in use on the rails the steering had to be

locked or made inoperable, and this was accomplished

either by an integrated, key-operated device in the ma-

chine itself and/or by a mechanical voke that fit over the

steering wheel. Once positioned the mechanical yoke could

only be removed manually. On June 3, 1983, Bailey was

responsible for the final inspection and set-up of the brush-

cutter as he was to be its driver that day.

CN had a rule, the precise language of which Plain-

tiff failed to prove, which required that two men ‘‘work

together’’ during any operations involving track machin-

ery such as the brusheutter. When actually using a ma-

chine for work the two operators would be physically to-

gether in it. However, when simply transporting a track

machine to another location this rule had been traditional-

lv interpreted by CN employees to mean that one operator

4

would drive the machine while the other accompanied

and/or preceded him along an adjacent highway to stop

at and protect any grade crossings. On June 3, 1983, the

brusheutter was being transported from Berlin, N.H. to

Island Pont, Vt. to return to Quebec.

Bailey left Berlin around 8:30 a.m. with a clear track

to Island Pond; Reindeau drove along N.H. Route 110

which parallels the CN track in that area. Bailey and

Reindeau met at the first grade crossing, but not at a sec-

ond crossing outside Groveton, N.H. Radio contact be-

tween them also stopped. Reindeau concluded that Bailey

had gotten ahead of him and proceeded to Groveton, and

then after waiting there, on to Island Pond. After wait-

ing for about an hour at Island Pond Reindeau and other

CN employees commenced a search for Bailey, and finally

located him at approximately 12:30 p.m. under the over-

turned machine about half-way between Berlin and Grove-

ton. After he was located it took approximately 11+ hours

to put in place the necessary equipment to extricate him,

and it was not until 2:30 p.m. that Bailey arrived at Andro-

seoggin Hospital in Berlin. Little could be done for Bailey

at Androscoggin, however, and that evening he was trans-

ported by ambulance to the Dartmouth-Hitcheock Medi-

eal Center in Hanover, N.H. arriving about 7:00 p.m.

Bailey died there on June 7, 1983, principally due to com-

plications from the massive crush injury which he received

in the derailment.

The trial court concluded that CN was not negligent

in its maintenance of the machine or the track in the area

of the accident site, or in its training of Bailey to operate

the machine. Because the overwhelming weight of the

evidence showed the track at the site to be well within

Federal Railway administration tolerances, and it had been

officially inspeeied only a few wecks prior to the accident,

the trial court rejected as ‘‘not credible’’ the entire theory

and opinion of Plaintiff’s expert witness regarding the

dynamics of the accident. See Petition, Appendix C, at

40a. Instead the trial court found convincing the opinion

of Defendant’s expert, who in reconstructing the accident

concluded that Bailey must have somehow disengaged the

mechanical steering yoke, then manually steered the rub-

ber wheels so that the brusheutter derailed, and then com-

pounded that error by attempting to rerail the machine

by driving up onto the track, which instead caused the

brusheutter to topple sideways. The machine could have

been simply stopped by applying the brakes after the initial

derailment, as they were in good working order and the

machine was probably traveling no faster than 20 m.p.h.

The trial court also concluded that CN was not negli-

gent in the application of its own rule that employees

‘‘work together’’ in transporting track machinery by the

procedure used here and in other similar instances, nor was

CN negligent in its search and resene efforts since those

were reasonably diligent under all of the circumstances.

Having thus found no basis for liability, the trial court

entered fudgment for Defendant CN without ever reachi-

ing or considering the questions of causation (including

the issue whether Bailey himself was a sufficient inter-

vening cause of the accident), Bailey’s own contributory

negligence, and of course damages. The Court of Appeals

for the Second Cireuit disagreed with the trial court’s

evaluation of the safety rule and reasonable search is-

sues, and reversed and remanded for reconsideration of

6

those two questions only; the court below affirmed as to

all other grounds for negligence raised by Plaintiff. See

805 F.2d at 1101-03; Petition, Appendix A, at 9a-13a.

ARGUMENT

Plaintiff asks the Court to reach out and decide an

issue that is not even squarely presented: a purported

conflict between the specific non-jury proscription of

the FSIA, and the implied right to a jury trial under the

FELA. As the court below noted, see 805 F.2d at 1101

fn. 3; Petition, Appendix A, at 7a, there simply is no stat-

utory conflict here, and accordingly the FSIA should be

applied unambiguously to the facts of this case.

Plaintiff’s attempt to circumvent the clear language of

the FSIA by arguing that the right to a jury trial is ‘‘ele-

rated to special status under the FELA’’—perhaps true ail

other things being equal, which they are not here—does

not create an important federal question begging to be

decided. The actual question raised by Plaintiff should be

left to another day in a case where it is truly determina-

tive. No Writ of Certiorari should be granted here to

4. There appears as yet to be no reported federal case in

which a specific statutory grant of a jury trial has met with a

claim for non-jury treatment under the FSIA. An injured sea-

man’s claim under the Jones Act, which refers to and incor-

porates the body of negligence law that has grown up around

the FELA but which expressly provides for trial by jury, see

46 U.S.C. § 688, is probably the clearest situation where such

an argument might arise, if the employer or ship owner were

a foreign state or one of its agencies or instrumentalities.

Again, however, it is best to “leave all this to the future.”

Ruggiero v. Compania Peruana de Vapores, 639 F.2d 872, 876

fn. 8 (2d Cir. 1981) (Friendly, J.). Plaintiff's discussion of and

analogy to the Jones Act is thus entirely inapposite.

review the decision below of the Court of Appeals for the

Second Circuit.

I. PLAINTIFF WAS NOT ENTITLED TO

TRIAL BY JURY IN THE DISTRICT

COURT

Plaintiff in this Court has abandoned any claim that

the FSIA by its terms, see Petition at viii-ix, does not

apply to CN (as it clearly does based on the facts out-

lined above), or that the FSIA does not mandate a non-

jury trial in all cases to which it applies. Plaintiff also

concedes that the FSIA’s proscription of jury trials does

not violate the Seventh Amendment to the United States

Constitution. All that Plaintiff argues now is that the

FELA’s admittedly ‘‘implied’’ right to a jury trial ought

to supersede the FSIA’s clear and express statutory rule

of non-jury trials in actions against foreign states and

their instrumentalities.

Although not framed as such by Plaintiff, the argu-

ment is essentially one grounded in a purported statutory

conflict, and hence her argument and its premise fail

because there simply is no conflict between the FELA

and the FSIA on this point. Congress having spoken clear-

ly and succinctly in one instance, and not at all in the

other, there is no riddle to be solved regarding Congress’s

intent to preclude non-jury trials here. ‘‘On its face, the

language of the [FISA] is unambiguons.’’? Verlinden

B.V. v. Central Bank of Nigeria, 461 U.S. 480, —, 76 L.

Ed.2d 81, 89, 103 S.Ct. 1962 (1983).

Plaintiff’s attempt to carve out from the FSIA a

special exception for FELA actions finds no support in

8

logic or case law. Every court of appeals to consider the

question has found the FSIA to be paramount, no mat-

ter what the type of case or nature of the claim. See

Bailey v. Grand Trunk Lines, 805 F.2d 1097, 1101 (2d

Cir. 1986); Arango v. Guzman Travel Advisors, 761 F.2d

1527, 1532-33 (11th Cir.), cert. denied, — U.S. —, 106

S.Ct. 408, 88 L.Ed.2d 359 (1985); McKeel v. Islamic Re-

public of Iran, 722 F.2d 582 (9th Cir. 1983), cert. denied,

469 U.S. 880, 150 S.Ct. 248, 83 L.Ed.2d 182 (1984); Goar

v. Compania Peruana de Vapores, 688 F.2d 417, 423 (5th

Cir. 1982); Rex v. Cia. Peruana de Vapores, 660 F.2d 61,

63-64 (3d Cir. 1981), cert. denied, 456 U.S. 926, 102 S.Ct.

1971, 72 L.Ed.2d 441 (1982); Williams v. Shipping Corp.

of India, 653 F.2d 875, 880-81 (4th Cir. 1981), cert. denied,

455 U.S. 982, 102 S.Ct. 1490, 71 L.Ed.2d 691 (1982).

Upholding Plaintiff’s argument would return the an-

alysis of foreign sovereign immunity claims to the same

‘*ease-by-case’’ basis which Congress sought to eliminate

by passage of the FSLA, and would mark the first breach

in the ‘‘comprehensive set ef-tegal standards’’ which the

FSIA was intended to be in every case. Verlinden B.V. v.

Central Bank of Nigeria, supra — U.S. at —, 76 L.Ed.2d

at 88-89. There is no principled reason why FELA claims

should be accorded any special preference or importance

over the claim of any other injured party. Since the lan-

guage of the FSIA is so unambiguously clear on this

point, there is no need even to delve into the murky ques-

tion whether Congress expressly considered the impact

of the FSIA on FELA claims. And if any consideration

was in fact given, the conclusion reached was most likely

that creating a systematic and comprehensive set of rules

for resolving foreign sovereign immunity claims was the

paramount goal.

Because there is no real statutory conflict here, it is

not productive to argue Professor Moore’s conclusory

statement that if there were such a conflict, then the stat-

ute creating the cause of action would always control and

supersede the FSIA’s proscription of jury trials. See 1

Moore’s Fed. Practice, { 0.66[44|, at 700.180 (1985 ed.).

Professor Moore cites no authority for such a sweeping

conclusion, and in any event it is irrelevant in this case.

Finally, Plaintiff’s argument that the FSIA and its

proscription of jury trials is not jurisdictional, is directly

contrary to this Court’s holding in Verlinden B.V. v. Cen-

tral Bank of Nigeria, supra, — U.S. at —, 76 L.Hid.2d at

92 & fns. 19-20, and the many decisions by the courts of

appeal on this issue. See e.g., Ruggiero v. Compania Per-

vana de Vapores, supra, 639 F.2d at 875, 876, 878; Frolova

v. U.S.S.R., 761 F.2d 370 (7th Cir. 1985) (per curiam).

But if the FSIA is the sole source of jurisdiction in all

cases to which it applies, then Plaintiff’s alternative ‘‘im-

plied waiver’? argument under Parden v. Terminal Rail-

way, 377 U.S. 184, 12 L.Ed.2d 233, 84 S.Ct. 1207 (1964) is

totally without merit. It matters not what the jurisdic-

tional or immunity analysis might have been absent enact-

ment of the FSIA, which is now clearly controlling; a

party’s actions, even if deliberate, cannot create subject

matter jurisdiction. And in any event Parden is irrelevant

because CN does not and has never claimed wholesale im-

munity from liability as the Alabama-owned railroad did

in Parden. Again, there is no indication that Congress in-

tended railroading to be a silent, unexpressed exception to

the otherwise unambiguous language of the FSIA.

10

II. PLAINTIFF IS NOT ENTITLED TO

JUDGMENT AS A MATTER OF LAW ON

LIABILITY

The facts and circumstances of this case certainly do

not lead to any ‘‘ineseapable conclusion’’ about either CN’s

alleged negligence or its liability for Bailey’s injuries. Any

conclusions to be drawn are at least in the first instance

the province of the trial court having heard the wit-

nesses and seen the exhibits, not an appellate court review-

ing a cold record. To be sure Plaintiff is not entitled to

judgment on liability as a matter of law where there are

so many unresolved questions of causation and contribu-

tory negligence which the trial court has not yet even

ruled on—let alone its reconsideration of the two negli-

gence issues remanded by the Court of Appeals for further

consideration.

For example, the evidence in the district court, apart

from demonstrating that Bailey alone was responsible

for the accident and derailment, also suggested strong-

ly that even if Reindeau had been there immediately,

the lapse of time necessary to extricate Bailey and get

significant medical attention—at least 1144 hours for the

former, 2 hours for the latter—could well have been fatal in

any event because he had already lost all sensation in his

legs after the first 45 minutes. The medical experts agreed

that the prognosis for a victim of a massive crush injury,

after circulation and sensation have been lost, is not good,

and that the ensuing complications—which are what ulti-

mately caused Bailey’s death—are usually irreversible.

Plaintiff thus cannot complain at all about being given

a second opportunity to convince the trial court that CN

was somehow negligent, and that any such negligence

11

played some part in Bailey’s injuries and death. To go

any further than that would surely invade the proper allo-

cation of functions between the trial and appellate courts.

fo)

CONCLUSION

It is respectfully submitted that the Petition for a

Writ of Certiorari should be denied in all respects.

Respectfully submitted,

CuarKE A. GraveEL, Esq.*

Grave. & Sua, Of Counsel

Rosert B. Hemtey, Esa.

Dennis R. Pearson, Esq.

109 So. Winooski Ave.

P.O. Box 1049

Burlington, VT 05402

(802) 658-0220

Attorneys for Respondent

*Counsel of Record

Dated: Burlington, Vermont

July 13, 1987