# Opposition Brief — Bailey v. Grand Trunk Lines New England

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 1987
- **Citation:** 484 U.S. 826

## Text

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

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385019_0372%3A2. Public record. Not legal advice.