Appendix — Mickler v. Nimishillen & Tuscarawas Railway Co.

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aaa FILED

931506 MAR 25104

OFFICE OF THE CLERK

No.

IN THE SUPREME COURT OF THE UNITED STATES

October Term, 1993

THOMAS L. MICKLER,

Petitioner,

Vv.

THE NIMISHILLEN & TUSCARAWAS

RAILWAY COMPANY,

Respondent.

PETITION FOR WRIT OF CERTIORARI

To the United States Court of Appeals

For the Sixth Circuit

APPENDIX TO PETITION FOR WRIT

OF CERTIORARI

DEBORAH PURCELL GOSHIEN

Counsel of Record

Bernsteen & Bernsteen

55 Public Square - Suite 1325

Cleveland, Ohio 44113

Telephone: (216) 621-5435

Attorney for Petitioner

TABLE OF CONTENTS TO APPENDIX

Appendix:

Sixth Circuit Decision

Filed December 23, 1993

Sixth Circuit Judgment

Filed December 23, 1993

Trial Court Memorandum of Opinion

and Order Granting Defendant’s

Motion for Summary Judgment

Filed June 18, 1992

Trial Court Judgment Entry

Filed June 18, 1992

45 U.S.C. Secs. 1-65, Secs. 421-

444 oe ee ae tee ee ee

4U.S.C.C. & A.N.

Rail Safety Improvement Act of 1988

PL 100-342 Legislative

History Poe eo

A-219

— setageernmeta tence ge leat 5 esa at a EIEN

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit Rule 24

Nos. 92-3740/4047

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

THOMAS L. MICKLER,

Plaintiff-Appellant,

ON APPEAL from the

Vv. United States

District Court for

THE NIMISHILLEN AND the Northern

TUSCARAWAS RAILWAY District of Ohio

COMPANY,

Defendant-Appellee.

Decided and Filed December 23, 1993

Before: KENNEDY and NORRIS, Circuit

Judges; and LIVELY, Senior Circuit Judge.

KENNEDY, Circuit Judge. Plaintiff

Thomas L. Mickler appeals the District

Court’s grant of summary judgment in

favor of his employer, Nimishillen &

Tuscarawas Railway Company (92-3740).

Plaintiff also appeals a magistrate

judge’s order denying plaintiff’s motion

to vacate the summary judgment, to re-

open discovery, and to indicate a

willingness to accept remand of the case

(92-4047). Plaintiff argues that the

District Court erred in holding that

defendant is not a common carrier engaged

in interstate commerce and thus not

subject to the Federal Employer’s

Liability Act ("FELA"), 45 U.S.C. §§51 et

seq. He further asserts that even if

defendant is not a common carrier,

recent amendments to the Boiler

Inspection Act ("BIA"), 45 U.S.C. §§ 22

et. seq., and the Safety Appliance Act

("SAA"), 45 U.S.C. § 11 make FELA

applicable to defendant; and that

defendant is estopped from denying it is

subject to FELA. For the reasons stated

below, we affirm the District Court’s

grant of summary judgment. The

Magistrate judge’s order is not a final

judgment of the District Court and is not

appealable. Thus, Appeal No. 92-4047

will be dismissed.

Plaintiff’s Complaint alleged that he

was employed by defendant as a trainman,

brakeman, and engineer when, while at

work,he fell "from a wet, slick, newly

and improperly painted locomotive,

covered with oil and rain and grease,"

causing him to seriously injure his left

Shoulder and teeth. The Complaint

further alleged that the accident was

caused by defendant’s negligence in

failing to provide a safe workplace, in

violation of FELA, the BIA, and the SAA.

Defendant answered the Complaint on

January 28, 1992, in which it admitted to

jurisdiction as a railroad carrier. On

February 13, 1992, within the time

permitted to amend without leave of the

court, defendant amended its Answer so as

to deny jurisdiction under FELA on the

ground that it is not a railroad common

carrier. On March 25, 1992, defendant

moved for summary judgment on that

ground.

On June 18, 1992, the District court

granted defendant’s motion for summary

judgment. The court’s memorandum found

that the following facts were undisputed.

Defendant is a wholly-owned subsidiary of

Republic Engineered Steel, Inc.

("Republic"). Defendant only transports

materials and products for Republic.

Defendant does not advertise or sell its

services to any other businesses. It

Only operates within the premises of

Republic’s plant and on adjacent

interchange tracks which are owned by

Consolidated Rail Corporation, Wheeling

and Lake Erie Railroad, and R.J. Corman

Railroad Co. Defendant transports

Shipments between common carrier

railroads and the Republic plant. The

Shipments contain products and materials

coming into Republic’s plan and leaving

the plant for out-of-state locations.

The court granted defendant’s motion for

summary judgment on June 22, 1992, on the

ground that defendant is not a common

carrier under FELA but rather an in-plant

carrier. The court also found ~»no

evidence that defendant had held itself

out as a common carrier and therefore is

not estopped from defending on the ground

that it is not a common carrier.

On July 17, 1992, plaintiff timely

appealed the order granting summary

judgment. On the same day, he filed a

combined motion with the District Court

to vacate the grant of summary judgment

pursuant to Fed. R. Civ. P. 60(b) and

motion to re-open discovery, on the

ground of newly discovered evidence. On

September 3, 1992, plaintiff requested

the District Court to indicate a

willingness to accept remand of the case

from the Court of Appeals in order to

rule on the motions to vacate and to re-

open discovery. The magistrate judgment

issued a "Memorandum and Order" denying

plaintiff’s motions. On October 8, 1992,

plaintiff appealed the magistrate judge’s

Order.

tI.

The grant of Summary judgment by a

district court is subject to de novo

review. Vv. 2 ’

948 F.2d 258 261 (6th Cir. 1991).

Summary judgment is Only appropriate when

there are no genuine issues of material

fact and the moving party is entitled to

judgment as a matter of law. Fed. R.

Civ. P. 56(c). Where, looking to the

record as a whole, a reasonable mind

could come to only one conclusion, there

is no genuine issue of material fact and

Summary judgment is appropriate.

Anderson v. Liberty Lobby, Inc., 477 U.S.

242 (1986).

FELA provides in pertinent part:

Every common carrier by railroad

while engaging in commerce between

any of the several States or

Territories, ... shall be liable in

damages to any person suffering

injury while he is employed by such

carrier in such commerce, ... for

such injury ... resulting in whole or

in part from the negligence of any of

the officers, agents, or employees of

such carrier, or by reason of any

defect or insufficiency, due to its

negligence, in its cars, engines,

appliances, machinery, track,

or other equipment.

45 U.S.C. § 51 (emphasis added).

Plaintiff argues that defendant is a

"common carrier by railroad" and is

therefore liable to plaintiff under FELA

for plaintiff’s injuries allegedly caused

by defendant’s negligence. The trial

court held that defendant is not a common

carrier and is therefore not subject to

FELA.

This Court has defined common carrier,

as used by FELA, as

one who holds himself out to the

public as engaged in the business

of transportation of persons or

property from place to place for

compensation, offering his services

to the public generally. The

distinctive characteristic of a

common carrier is that he undertakes

to carry for all people in-

differently, and hence is regarded

in some respects as a public

servant.

Kieronski v. Wyandotte Terminal Railroad

Co., 806 F.2d 107, 108 (6th Cir. 1986)

(quoting Kelly v. General Electric Co.,

110 F. Supp. 4, 6 (E.D. Pa.), aff'd, 204

F.2d 692 (3d Cir.), cert. denied, 346

U.S. 886 (1953)). Kieronski noted

several types of carriers including (1)

in-plant carriers, which transport

products within a particular business and

may be connected to common carriers; (2)

private carriers, who haul for others,

but only pursuant to individual contracts

A-9

entered into separately with each

customer; (3) linking carriers, which

link two or more common carriers; and (4)

mixed function carriers, which perform

both as in-plant carriers and common

carriers. 806 F.2d at 109. In-plant and

private carriers are generally not

considered to be common carriers but

linking and mixed-function carriers are

considered common carriers because they

are part of the common carrier system

providing rail service to the public.

In this case, defendant supported its

motion for summary judgment with the

affidavit of its vice-president of

Operations, James T. Winterfeld. The

affidavit set forth facts supporting

defendant’s claim that it is not a common

carrier but rather an in-plant carrier.

The affidavit states that defendant is a

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wholly-owned Subsidiary of Republic; that

defendant is licensed aS a common carrier

but provides transportation services

exclusively for Republic; that defendant

does not advertise a service for any

business other than Republic nor receive

any remuneration for service except from

Republic; that defendant Operates only

within Republic’s plant premises except

to use common carrier tracks adjacent to

the plant for transferring Republic

Shipments from the plant to the common

Carrier railroads; that defendant owns no

track outside Republic’s premises nor has

any agreement with any common carrier

except for the aforesaid interchange

Operations. These facts Support

defendant’s claim that it is an in-plant

Carrier and not a common carrier.

Once the moving party has made and

Supported its motion for summary

judgment, "the adverse party may not rest

upon the mere allegations or denials of

the adverse party’s pleadings, but the

adverse party’s response, by affidavits

Or as otherwise provided in this rule,

must set forth specific facts showing

that there is a genuine issue for trial."

Fed. R. Civ. P. 56(e). Plaintiff opposed

defendant’s motion with his own

affidavit, an affidavit by plaintiff's

local union president, John McGarry, and

copies of various letters, memoranda, and

other documents. These papers show that

plaintiff was an employee of defendant

and that plaintiff was covered by

railroad retirement. They further

indicate that defendant was licensed to

A-12

Operate as a common carrier, that

products were shipped by Republic to

Other states and that employees of

defendant worked outside Republic’s yard.

Plaintiff’s affidavit also states that

[t]he Railroad was not used solely

to load and unload goods purchased

and used by the steel company, and

that Defendant is a linking carrier

and a vital part of the interstate

commerce system because goods and

alloys destined for other states

from the steel company were sent out

from this location by the linking

system of tracks used by the

Railroad crews which were permitted

to work outside the yard and on

Conrail facilities such as I was

permitted to do.

These facts, assuming for summary

judgment that they can be proved, do not

create an issue of material fact for

trial. The question is not whether

defendant is licensed as a common Carrier

but whether defendant offers or provides

common carrier services. Also, defendant

may have acted under a mistaken belief

that it was a common carrier and

accordingly provided certain retirement

benefits and submitted to federal

inspections but it is not a common

carrier unless it provided services for

other common carriers or the _ public.

Plaintiff’s papers provided no evidence

that defendant had held itself out to the

public or any other businesses as a

common carrier, nor that defendant

provided any service for or received any

compensation from any business other than

Republic. Although plaintiff did allege

that defendant was a "linking carrier"

and “was not used solely to load and

unload goods purchased and used by the

steel company," plaintiff based these

assertions on the fact that defendant

transports products for out-of-state

destinations and Operates on tracks that

link to Conrail. These facts do not,

however, bring defendant under FELA.

Although engaging in interstate commerce

is a prerequisite for FELA liability, it

is a separate question from whether a

railroad is a common carrier. Also,

linking to common carriers does not make

defendant a "linking carrier" under

Kieronski. A linking carrier is a

railroad that links common carriers to

one another not one that links a private

business to a common carrier. See

Kieronski, 806 F.2d at 109 ("An in-plant

System does not become a common carrier

merely by being connected to a common

Carrier, because such a connection is a

common feature of in-plant Ssystems.").

If plaintiff’s allegations were based on

0 ee on aad

or allen iat

something more than the reason recited,

then they lacked the specificity required

tO oppose a motion for summary judgment.

See Fed. R. Civ. P. 56(e). Thus,

defendant’s claim that it is not a common

carrier is not in genuine dispute.

Defendant is not subject to FELA as a

common carrier.

iil.

Plaintiff’s second contention is that,

even if defendant is not a common

carrier, it is nonetheless subject to

FELA in light of recent amendments to the

BIA and the SAA. These Acts impose

lthe District Court also addressed

plaintiff’s argument that the BIA and SAA

independently provide a cause of action

without regard to FELA. The District

Court held that a railroad employee suit

for violations of BIA and SAA could only

be brought through FELA and that BIA and

SAA only serve as standards of negligence

per se for purposes of FELA liability.

This issue is not argued on appeal.

A-16

duties on railroads to comply with

various safety standards. In 1988,

Congress amended these Acts substituting

"railroad" for "common carrier" and

"Carrier" throughout the SAA and BIA.

Plaintiff argues that the BIA and SAA

should be read in pari materia with FELA

to extend FELA to all circumstances where

the BIA or SAA apply.

The SAA and BIA are railroad safety

laws, the enforcement provisions of which

create civil penalties and charge the

Department of Transportation through the

“congress amended several railway

safety acts by the Railway Improvement

Act of 1988, Pub. L. No. 100-342, 102

Stat. 631 (1988). For the legislative

history and purpose of the Act, see 1988

U.S.C.C.A.N. 695.

A-17

Cen ee a ge Ran a ee ee

Nataly Ag

Federal Railroad Administration (FRA)

with responsibility for their

enforcement. By the Act of 1988,

Congress broadened federal jurisdiction

over railroad safety to include railroads

that are neither common carriers nor

engaged in interstate commerce. The

purpose of the Act was to continue and

expand federal regulation of railroad

safety. The apparent purpose _ for

Substituting "railroad" for “common

carrier" in the safety acts was to

provide uniformity in the _ safety

requirements of all railroads and to

subject all railroads to the injunctive,

inspection and penalty powers of the FRA.

See House Conf. Rep. No. 100-637, cited

in 1988 U.8.C.C.A.N. at 716. The Act

also expanded the reach of the FRA’s

enforcement power to individual railroad

A-18

employees, managers, Supervisors and

officials. See House Conf. Rep. No. 100

637, cited in 1988 U.S.C.C.A.N. at 709.

These amendments, however, were limited

to the statutory provisions outlining

safety standards and the procedures by

which the FRA would enforce these

standards. Congress did not amend FELA,

which creates a tort remedy for railroad

employees injured as a result of the

negligence of their employers. FELA

continues to apply only to common

carriers engaging in interstate commerce.

See 45 U.S.C. § 51. Although courts

have read FELA in pari materia with the

BIA and SAA, they have only referred to

the latter safety laws as a negligence

standard for the application of FELA.

A-19

Mi TA

ce ctl

See, 2S. Vv. vania, 156

F.2d 877, 879 (7th Cir. 1946). a

violation of BIA or SAA is negligence per

se under FELA. Urie v. Thompson, 337

U.S. 163, 188-89 (1949); Green v. River

Terminal Railway Co., 763 F.2d 805, 810

(6th Cir. 1985); McCarthy, 156 F.2d at

879 (citing San Antonio & Arkansas Pass

R. Co. v. Wagner, 241 U.S. 476, 484

(1916)). FELA, by its terms, has always

applied only to common carriers engaged

in interstate commerce. Plaintiff has

presented no authority in the statute,

legislative history, or precedent that

suggests that Congress intended to expand

the class of railroads liable for

employee injuries under FELA. In fact,

the Senate Report on the 1988 amendments

States that "this legislation authorizes

A-20

the FRA to take direct enforcement action

against individuals, as well as railroad

companies. It would not otherwise affect

private proceedings as between railroads

and their employees." Sen. Rep. No.100-

153 § 3, cited in 1988 U.S.C.C.A.N. at

701 (emphasis added). Absent clear

congressional intent or an intolerable

conflict between the 1988 amendments and

FELA, we will not expand FELA beyond the

reach of its plain language. FELA only

applies to common Carriers and therefore

does not apply to defendant.

IV.

Plaintiff’s third Challenge to the

trial court’s grant of Summary judgment

is based on estoppel. Plaintiff contends

that defendant represented itself to

Plaintiff as a common carrier and

plaintiff detrimentally relied on such

A-21

representation. Plaintiff argues that

defendant should be estopped from denying

it is a common carrier and therefore

should be deemed as such for purposes of

PFELA liability. The trial court denied

this claim on the ground that plaintiff

has presented no evidence that defendant

represented itself to plaintiff as a

common carrier.

This Court has no jurisdiction over

plaintiff’s estoppel claim. The sole

basis for federal jurisdiction in this

case is FELA. Because defendant is not a

common carrier and FELA does not apply,

there is no federal question. Even if

plaintiff could establish the elements of

estoppel, we would still have no

jurisdiction.> Federal jurisdiction

simply cannot be conferred by estoppel.

Franzel _v. Kerr Mfg. Co., 959 F.2d 628,

630 (6th Cir. 1992) (citing American Fire

& Casualty Co. v. Finn, 341 U.S. 6

(1951)) (principles of estoppel may not

be used to confer subject-matter

jurisdiction on a court that would

We note that even if defendant were

estopped from denying it was a common

Carrier, summary judgment would be

proper. Plaintiff has the burden of

proving defendant is a common carrier and

therefore must present affirmative

evidence indicating such. Because

Plaintiff has not presented any such

evidence, his claim would fail, even if

defendant were es topped from presenting

evidence that it is not a common carrier.

A-23

otherwise lack it); Wooten v. United

States, 825 F.2d 1039, 1045 (6th Cir.

1987) (citing Owen Equip. and Erection

Co. v. Kroger, 437 U.S. 365, 377 n.21

(1978)) ("Since federal courts are courts

of limited jurisdiction, jurisdiction

that is otherwise lacking cannot be

conferred by consent, collusion, laches,

waiver, or estoppel."); Mahoney _v.

Northwestern Bell Tel. Co., 377 F.2d 549,

949 (8th Cir. 1967) ("It is ... well

established that jurisdiction cannot be

acquired by estoppel."); Poole v. Lykes

Bros. Steamship Co., 273 F.2d 423, 423

(sta Cig. 1960) (no conferring of

jurisdiction by estoppel); In re Federal

Facilities Realty Trust, 227 F.2d 651,

656 (7th Cir. 1955) ("{J]urisdiction can

never be created by estoppel. ...").

Therefore, plaintiff's estoppel claim

must be dismissed.

Finally, plaintiff appeals from the

denial of his motion to vacate the

summary judgment pursuant to Fed. R. Civ.

P. 60(b) and motion to re-open the case

for discovery. This appeal is not

properly before us. The order denying

plaintiff's motions was issued by a

magistrate judge and not a judge.

Decisions and orders of magistrate

judges are directly appealable to this

Court under only limited circumstances,

none of them applicable here. Although

neither party raised this issue on

appeal, this Court must raise the matter

Sua sponte because it goes to the issue

A-25

of subject-matter jurisdiction. Bennet

v. General Caster Service of N. Gordon

Co., 976 F.2d 995, 997 (6th Cir. 1992)

(citing Ambrose v. Welch, 729 F.2d 1084,

1085 (6th Cir. 1984)). Therefore, the

magistrate judge lacked jurisdiction to

enter a final order. The order entered

is not appealable. Accordingly, the

appeal (92-4047) is dismissed.

VI.

For the reasons stated above, the order

granting summary judgment is AFFIRMED and

the appeal from the magistrate judge’s

Order denying plaintiff’s motions to

vacate judgment and re-open discovery is

dismissed.

a Ne ee le a et

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

FILED

DEC 23 1993

Nos: 92-3740: 92-4047 LEONARD

GREEN,

Clerk

THOMAS L. MICKLER,

Plaintiff-Appellant,

NIMISHILLEN AND TUSCARAWAS RAILWAY

COMPANY,

Defendant-Appellee.

Before: Kennedy and Norris, Circuit

Judges; and Lively, Senior Circuit Judge

JUDGMENT

ON APPEAL from the United States

District Court for the Northern District

of Ohio at Cleveland.

THIS CAUSE was heard on the record

from the district court and was argued by

counsel.

ON CONSIDERATION WHEREOF, it is

ORDERED that the order of the district

A-27

court granting summary judgment is

AFFIRMED. IT IS FURTHER ORDERED that the

order denying plaintiff’s motions to

vacate judgment and re-open discovery is

DISMISSED.

ENTERED BY ORDER OF THE COURT

Leonard Green, Clerk

Issued as Mandate: January 21, 1994

A True Copy

COSTS: None Attest:

Piling Fee ...... ee =

PEINCING cccccecs $ Deputy Clerk

BGs eecese S$

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF OHIO

EASTERN DIVISION

SENIOR JUDGE

ALVIN I. KRENZLER

THOMAS L. MICKLER

)

Plaintiff )

) CASE NO. 1:92CV0053

-vs- )

) MEMORANDUM OF

THE NIMISHILLEN AND ) QPINION AND ORDER

TUSCARAWAS RAILWAY ) GRANTING

COMPANY ) DEFENDANT’S MOTION

) FOR SUMMARY

) JUDGMENT

This case is before this Court

on the motion for summary judgment filed

by defendant, the Nimishillen and

Tuscarawas Railway Company ("N & = hs

The complaint in this case

alleges that plaintiff, Thomas lL.

Mickler, was employed by N & T as a

trainman, engineer, and _ brakeman.

According to the complaint, while

plaintiff was at work, he fell "from a

wet, slick, newly and improperly painted

locomotive, covered with oil and rain

and grease," resulting in injuries to his

teeth and left shouldecx. The complaint

asserts that N & T was negligent and

failed to provide plaintiff with a safe

place to work, in violation of the

Federal Employer’s Liability Act

("FELA"), 45 U.S.C. §§ 51 et seq., the

Federal Boiler Inspection Act, 45 U.S.C.

§§ 22 et seq., and the Federal Safety

Appliance Act, 45 U.S.C. § ll.

The complaint contends that as

a result of his injuries, plaintiff has

suffered permanent physical limitations,

mental suffering and loss of enjoyment of

life. The complaint further contends

that plaintiff’s injuries require on-

going medical attention, and have caused

him to lose wages. The complaint seeks

damages in the amount of $4,000.00 and

costs.

N & T originally filed an

answer in which it denied the essential

allegations of the complaint but admitted

that it was a railroad carrier engaged in

interstate commerce. However, N & T

subsequently filed an amended answer in

which it denied that it was "engaged in

interstate commerce as ae railroad

carrier," and asserted that it was not

subject to the FELA, the Safety Appliance

Act or the Boiler Inspection Act.

N & T now moves for summary

judgment on the ground that it is not a

“common carrier by railroad,” and is

therefore not subject to liaFility under

the FELA. In opposition to N & T’s

motion, plaintiff claims that N & T is

estopped from denying that it is a common

carrier by railroad. Plaintiff also

argues that N & T is subject to liability

for violations of the Boiler Inspection

Act and the Safety Appliance Act.

The Court finds that there are

no genuine issues as to any material

fact. The Court finds that N & T is not

subject to liability under the FELA

because it is an in-plant rail carrier,

not a common carrier. The Court further

finds that N & T is not estopped from

defending this action on the ground that

it is not a common carrier. Finally,

although the Boiler Inspection Act and

the Safety Appliance Act impose duties

On "railroads," and are not limited to

“common carriers by railroad" like the

FELA, violations of those statutes only

constitute negligence per se under the

FELA; there is no separate cause of

action for violation of the Boiler

Inspection Act and the Safety Appliance

Act apart from the FELA. Therefore, N &

T is entitled to judgment as a matter of

law.

PACTUAL BACKGROUND

In support of its motion for

summary judgment, N & T submitted the

affidavit of its vice president of

Operations, James T. Winterfeld. In

Opposition to N & T’s motion, plaintiff

has submitted his own affidavit and the

affidavit of his local union’s president,

John McGarry, as well as copies of

various letters, memoranda, and other

documents. Taken together, these

materials disclose the following facts.

N & T is a wholly-owned

Subsidiary of Republic Engineered Steel,

Inc. ("Republic"). Although N & T is

permitted to operate as a common carrier,

it only transports goods, materials and

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= ta “oem x -

products for Republic; it does not

advertise or sell its services to any

other business. N & T only operates

within the premises of Republic’s plant

and on interchange tracks adjacent to the

plant which are owned by Consolidated

Rail Corporation, Wheeling & Lake Erie

Railroad, and R.J. Coreman Railroad Co.

N & T transports shipments between common

carrier railroads and the Republic plant,

moving materials and goods into the

Republic plant, and moving products out

of the Republic plant which are destined

for out-of-state locations.

LIABILITY OF N & T UNDER THE FELA

The FELA, 45 U.S.C. § 51,

provides in pertinent part:

Every common carrier by

railroad while engaging in

commerce between any of the

several States or

Territories, ... shall be

liable in damages to any

person suffering injury while

he is employed by such carrier

in such commerce, ... for such

injury ... resulting in whole

or in part from the negligence

of any of the officers, agents,

or employees of such carrier,

or by reason of any defect or

insufficiency, due to its

negligence, in its cars,

engines, appliances, machinery,

track, ... or other equipment.

(Emphasis added. )

The only persons liable under

the FELA are “common carriers by

railroad." A common carrier by railroad

has been defined as:

one who holds himself out to

the public as engaged in the

business of transportation of

persons or property from place

to place for compensation,

offering his services to the

public generally. The distinc-

tive characteristic of a common

carrier is that he undertakes

to carry for all people

indifferently, and hence is

regarded in some respects as a

public servant.

A-35

en ne

Kieronski v. Wyandotte Terminal Railroad

Co., 806 F.2d 107, 108 (6th Cir. 1986)

(quoting Kelly v. General Electric Co.,

110 F.Supp. 4, 6 (E.D. Pa. 1953)).

In Kieronski, the Sixth Circuit

noted that there are several different

categories of "carriers." These include

(1) in-plant rail facilities, which haul

goods and materials within a particular

business, although they are usually

connected to a common carrier, (2)

private carriers, who "haul for others,

but only pursuant to individual

contracts, entered into separately with

each customer," (3) linking carriers,

which link two or more common carriers,

and (4) mixed-function carriers, which

serves both in-plant functions and common

Carrier functions. Kieronski, 806 F.2d

at 109. In-plant facilities and private

carriers, because they do not purport to

act for the public. On the other hand,

linking carriers and mixed-function

carriers are considered to be common

carriers, because they are part of the

common carrier system providing rail

service to the public. Id.

In this case, the evidence

shows that N & T is an in-plant carrier.

N & T is wholly owned by Republic. It

operates primarily within the Republic

plant. Although it carriers goods

between the Republic plant and

interchange tracks belonging to common

carriers, it does so only to transfer

Shipments between the common carrier

railroads and Republic. This is a

typical activity for an in-plant system.

Kieronski, 806 F.2d at 109. There is no

evidence that N & T serves any “linking"

A-37

ee ee eS a

function between the common carrier

railroads, or that it performs any of the

functions that the common carrier

railroads were hired to perform by their

customers. N & T transports goods only

for Republic, and is compensated only by

Republic; it performs nc services and

receives no remuneration from any other

source. Therefore, the Court finds that

N & T is an in-plant rail facility, not a

common carrier by railroad. As an in-

plant rail facility, N & T is not subject

to liablity under the FELA.

Plaintiff argues that N & T is

estopped from denying that it is a common

carrier by railroad. To prove estoppel,

plaintiff must show that (l) N & T made a

material misrepresentation of fact, (2) N

& T knew the true facts, (3) N & T

intended for plaintiff to rely upon its

misrepresentation, (4) plaintiff was

unaware of the true facts, and (5)

plaintiff justifiably relied upon the

misrepresentation to his detriment. See,

e.g., Apponi _v. Sunshine Biscuit, Inc.,

809 F.2d 1210, 1215 (6th Cir. 1987).

Here, there is no evidence that

N & T represented itself to be a common

carrier. Plaintiff has submitted several

unidentified and unauthenticated letters

and memoranda in which N & T states that

it is a "railroad." However, N & T does

not deny that it is a railroad; it denies

that it is a common carrier. N & T does

not represent itself to be a common

carrier in any of the documents submitted

by plaintiff. Furthermore, although N &

T’s initial answer to the complaint

admitted that it was a "railroad

carrier,” N & T amended its answer to

A-39

ite iN .

{

deny this allegation and to deny that it

was subject to liability under the FELA

within the time it was permitted to amend

without leave of court under Fed. R. Civ.

P. 15(a). Therefore, the documents

submitted by plaintiff do not demonstrate

any misrepresentation by N & T, and N&T

is not estopped from defending this

action on the ground that it is not a

common carrier.

Plaintiff finally asserts that,

even if N & T is not subject to liability

under the FELA, N & T may still be held

liable to him under the Boiler Inspection

Act and the Safety Appliance Act. The

Boiler Inspection Act and the Safety

Appliance Act both impose duties on

"railroads;" they are not limited to

common carriers by railroad like the

FELA. The Safety Appliance Act makes it

A-40

“=

unlawful for a railroad to haul a car on

its line which is not equipped with

certain safety equipment. 45 U.S.C. §ll.

The Boiler Inspection Act similarly makes

it unlawful for a railroad to use any

locomotive on its line which is not in

proper condition and safe to operate.

45 U.S.C. § 22.

Although they impose duties on

railroads, neither the Boiler Inspection

Act nor the Safety Appliance Act confers

any right of action upon an injured

employee. ie v. h » 337. Us.

163, 188 (1949). Thus, plaintiff has no

direct claim against N & T under these

two statutes. Rather, a claim for

violation of the Boiler Inspection Act or

the Safety Appliance Act may be

prosecuted as an action for negligence

per se under the FELA. Urie, 337 U.S. at

A-41

il lit ne nk,

188-89; Green v. River Terminal Railway

Co., 763 F.2d 805, 810 (6th Cir. 1985).

As noted above, however, the only persons

liable under the FELA are common carriers

by railroad. Because N & T is not a

common carrier, it cannot be held liable

to plaintiff under the FELA.

CONCLUSION

The Court finds that there are

no genuine issues as to any material

fact. N & T is not a common carrier

which can be held liable to plaintiff

under the FELA. Therefore, N & T is

entitled to judgment as a matter of law.

Accordingly, the Court will enter

judgment in favor of N & T on plaintiff’s

complaint.

/s/ Alvin J. Krenzler

UNITED STATES SENIOR DISTRICT

JUDGE

Deborah P. Goshien

Philip Howes

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF OHIO

EASTERN DIVISION

THOMAS L. MICKLER SENIOR JUDGE

ALVIN I. KRENZLER

Plaintiff

CASE NO. 1:92CV0053

THE NIMISHILLEN AND

TUSCARAWAS RAILWAY

COMPANY

Ne ee ee ee ee eee eee eee eee ee”

Defendant JUDGMENT ENTRY

This Court, having previously

entered its Memorandum of Opinion and

Order Granting Defendant’s Motion for

Summary Judgment, hereby enters judgment

for defendant, the Nimishiilen and

Tuscarawas Railway Company, and against

the plaintiff, Thomas L. Mickler, on all

of plaintiff’s claims. Plaintiff to pay

costs.

/s/ Alvin J. Krenzler

UNITED STATES SENIOR DISTRICT

JUDGE

Deborah P. Goshien

Philip Howes

A-43

UNITED STATES CODE

1988 EDITION

CONTAINING THE GENERAL AND

PERMANENT LAWS OF THE UNITED STATES,

IN FORCE ON

JANUARY 3, 1989

Prepared and published under authority of Title 2,

U.S. Code, Section 285b, by the Office of the Law

Revision Counsel of the House of Representatives

Nate | ele inal lla.

VOLUME EIGHTEEN

TITLE 43 — PUBLIC LANDS

TITLE 47 - TELEGRAPHS, TELEPHONES, AND

RADIOTELEGRAPHS

se a oy =

UNITED STATES

GOVERNMENT PRINTING OFFICE

WASHINGTON : 1989

A-44

Chap. Sec.

1. Safety Appliances and Equipment on Railroad

Engines and Cars, and Protection of

Employees and Travelers ............... 1

2. Liability for Injuries to Employees ......... 51

3. Hours of Service of Employees ............ 61

4. Care of Animals in Transit ............... 71

5. Government-Aided Railroads ............. 81

6. Mediation, Conciliation, and Arbitration in

Controversies Between Carriers and

Employees [Repealed or Omitted] ...... 101

7. Adjustment Boards and Labor Boards

sc ¢ eke R ha Wows aes sao so 6a 131

GC. Te ose oun ete ka vey sect ees 151

9. Retirement of Railroad Employees ........ 201

10. Tax on Carriers and Employees [Repealed or

eo ee eer Shy eee eee 101

11. Railroad Unemployment Insurance ........ 351

12. Temporary Railroad Unemployment

PE DOME oo boa tcc eee sees. 401

eel EE 421

14. Rail Passenger Service .............00+. 501

15. Emergency Rail Services ............... 661

16. Regional Rail Reorganization............ 701

17. Railroad Revitalization and Regulatory

ES cae aes ee WA sd 6 oe 00.6 0 60 801

18. Milwaukee Railroad Restructuring ........ 901

19. Rock Island Railroad Employee Assistance . 1001

20. Northeast Rail Service ................ 1101

21. Alaska Railroad Transfer .............. 1201

bbs COED RS oc ooo sc ak biece ss 1301

CROSS REFERENCES

Land grant in aid of railroads, see section 881 et

seq. of Title 43, Public Lands.

A-45

CHAPTER 1-SAFETY APPLIANCES AND

EQUIPMENT ON RAILROAD ENGINES AND

CARS, AND PROTECTION OF EMPLOYEES

AND TRAVELERS

Sec.

1. Driving-wheel brakes and appliances for

operating train-brake system

2. Automatic couplers.

3. Refusal of insufficiently equipped cars from

connecting lines.

4. Grab irons or handholds for security in

. coupling and uncoupling cars.

5. Standard height of drawbars for freight cars;

noncomplying cars excluded from traffic.

6. Failure to equip cars as provided; duty of

| United States attorneys and Secretary of

Transportation; exceptions from operation

| of provisions.

7. Assumption of risk by employees.

8. Provisions of certain sections extended.

9. Power or train brakes; operation by engineer;

| rules for installation, inspection,

| maintenance, and repair.

10. Former duties, requirements, and liabilities

continued unless specifically amended.

11. Safety appliances required for each car; when

hand brakes may be omitted.

12. Safety appliances, as designated by the

Secretary of Transportation to be

standards of equipment; modification of

standard height of drawbars.

13. Penalty for using car not equipped as

provided; hauling car for repairs where

equipment becomes defective; liability for

death or injury of employee; use of chains

instead of drawbars.

A-46

lia,

14, Liability for using car with defective

equipment, except as specified.

15. Repealed.

16. Safety Appliance Acts; "railroad" defined.

17 to 21. Repealed.

22. Inspection of locomotives and

appurtenances; "railroad" defined.

23. Use of unsafe locomotives and

appurtenances unlawful; inspection and

tests.

24 to 27. Omitted.

28. Rules and instructions as to inspection.

29. Duties of district inspectors; inspection and

repairs by railroads; notice to railroad of

condition of boiler; appeal to director

and reexamination; further appeal to

Secretary.

30. Powers and duties of inspectors, and

provisions of certain sections applicable

to all parts of locomotive and tender;

examinations of inspectors.

31. Annual report of director.

32. Report by railroad to director as to accident;

preservation of disabled parts;

investigation and report thereupon.

33. Reports by Secretary of investigations.

34. Penalty for violations by railroad; duty of

United States attorney to sue therefor;

director to give information; willful

violations.

35. Investigations and report by Secretary on

block-signal systems and appliances for

automatic control of trains; evidence.

36. Investigation and testing by Secretary of

appliances or systems to promote safety.

37. Inspection of mail cars.

A-47

cis piitiin Cale

d ote» -

38. Monthly reports of railroad accidents; duty

of railroad to make; "railroad" defined.

39, Penalty for failure to make report.

40. Investigation by Secretary of accidents;

cooperation with State commissions;

reports of investigations.

41. Reports not evidence in suits for damages.

42. Rules and regulations; form of reports.

43. Penalties for violations by railroads; duty of

United States attorney to sue therefor;

willful violations.

43a. Accident reports.

44 to 46. Transferred.

A-48

CHAPTER REFERRED TO IN OTHER SECTIONS

This chapter is referred to in title 48 section 751.

§ 1. Driving-wheel brakes and appliances for

operating train-brake system

It shall be unlawful for any railroad to use on its

line any locomotive engine not equipped with a power

driving-wheel brake and appliances for operating the

train-brake system, or to run any train that has not a

sufficient number of cars in it so equipped with power or

train brakes that the engineer on the locomotive drawing

such train can control its speed without requiring

brakemen to use the common hand brake for that

purpose.

(Mar.2, 1893, ch. 196 § 1, 27 Stat. 531; June 22, 1988,

Pub. L. 100-342, § 13(1)(A), 102 Stat. 630.)

AMENDMENTS

1988-Pub. L. 100-342 struck out “common carrier

engaged in interstate commerce by" before, "railroad", "in

moving interstate traffic’ after "locomotive engine", and

"in such traffic” after "any train”.

SHORT TITLE

The following acts are popularly known as Boiler

Inspection Acts:

Feb. 17, 1911, ch. 103, 36 Stat. 913. See section

22 to 29 and 31 to 34 of this title.

Mar. 4, 1915, ch. 169, 38 Stat. 1192. See sections

23 and 30 of this title.

A-49

atari iain aii

th, tt das

Pl eat Me cx er Me.

;

June 26, 1918, ch. 105, 40 Stat. 616. See sections

24 and 26 of this title.

June 7, 1924, ch. 355, 43 Stat. 659. See sections

22 to 24 and 27 of this title.

Apr. 22, 1940, ch. 124, 54 Stat. 148. See sections

24 to 34 of this title.

The following acts are popularly known as Safety

Appliance Acts:

Mar. 2, 1893, ch. 196, 27 Stat. 531. See sections

1 to 7 of this title.

Mar. 2, 1903, ch. 976, 32 Stat. 943. See sections

8 to 10 of this title.

Apr. 14, 1910, ch. 160, 36 Stat. 298. See sections

11 to 16 of this title.

TRANSFER OF FUNCTIONS

All powers, duties, and functions of the Interstate

Commerce Commission and of the Chairman, members,

offices, and officers thereof under this section relating to

safety appliances and equipment on railroad engines and

cars and the protection of employees and travelers were

transferred to and vested in the Secretary of

Transportation by Pub. L. 89-670, Oct 15, 1966, 80 Stat.

931, which created the Department of Transportation.

See section 1655(e)(1)(A) of Title 49, Appendix,

Transportation.

A-50

CROSS REFERENCES

Assumption of risk by employees, see section 7 of

this title.

Railroads in Territories and District of Columbia,

section as applicable to, see section 8 of this title.

SECTION REFERRED TO IN OTHER SECTIONS

This section is referred to in sections 3, 6, 7, 8, 9,

10, 13, 14, 16, 37, 1013 of this title; tithe 42 section 4916;

title 49 App. section 1655.

§ 2. Automatic couplers

It shall be unlawful for any such railroad to haul

or permit to be hauled or used on its line any car not

equipped with couplers coupling automatically by impact,

and which can be uncoupled without the necessity of

men going between the ends of the cars.

(Mar. 2, 1893, ch. 196 § 2, 27 Stat. 531; June 22, 1988,

Pub. L. 100-342, § 13(1)(B), 102 Stat. 630.)

AMENDMENTS

1988-Pub. L. 100-342 substituted "railroad" for

"common carrier" and struck out “used in moving

interstate traffic" after "car".

TRANSFER OF FUNCTIONS

All powers, duties, and functions of the Interstate

Commerce Commission and of the Chairman, members,

offices, and officers thereof under this section relating to

safety appliances and equipment on railroad engines and

A-51

—————————

Pe eevee Lee se TS ae ee .

op ee ee

oa a

ee eae ee RT et |

’

;

cars and the protection of employees and travelers were

transferred to and vested in the Secretary of

Transportation by Pub. L. 89-670, Oct. 15, 1966, 80 Stat.

931, which created the Department of Transportation.

See section 1655(e)(1)(A) of Title 49, Appendix,

Transportation.

CROSS REFERENCES

Assumption of risk by employees, see section 7 of

this title.

Railroads in Territories and District of Columbia,

section as applicable to, see section 8 of this title.

SECTION REFERRED TO IN OTHER SECTIONS

This section is referred to in sections 3, 6, 7, 8, 9,

10, 13, 14, 16, 37, 1013 of this title; title 42 section 4916;

title 49 App. section 1655.

§ 3. Refusal of insufficiently equipped cars from

connecting lines

When any railroad shall have equipped a sufficient

number of its cars so as to comply with the provisions of

section 1 of this title, it may lawfully refuse to receive

from connecting lines of road or shippers any cars not

equipped sufficiently, in accordance with said section,

with such power or train brakes as will work and readily

interchange with the brakes in use on its own cars, as

required by sections 1 to 7 of this title.

(Mar. 2, 1893, ch. 196, § 3, 27, Stat. 531; June 22, 1988,

Pub. L. 100-342, § 13(1)(c), 102 Stat. 630.)

A-52

AMENDMENTS

1988—Pub. L. 100-342 struck out "person, firm,

company, or corporation engaged in interstate commerce

by" after "When any".

TRANSFER OF FUNCTIONS

All powers, duties, and functions of the Interstate

Commerce Commission and of the Chairman, members,

offices, and officers thereof under this section relating to

safety appliances and equipment on railroad engines and

cars and the protection of employees and travelers were

transferred to and vested in the Secretary of

Transportation by Pub. L. 89-670, Oct. 15, 1966, 80 Stat.

931, which created the Department of Transportation.

See section 1655(e)(1)(A) of Title 49, Appendix,

Transportation.

CROSS REFERENCES

Assumption of risk by employees, see section 7 of

this title.

Railroads in Territories and District of Columbia,

section as applicable to, see section 8 of this title.

SECTION REFERRED TO IN OTHER SECTIONS

This section is referred to in sections 6, 7, 8, 9, 10,

13, 14, 16, 37, 1013 of this title; title 42 section 4916;

title 49 App. section 1655.

§ 4. Grab irons or handholds for security in coupling

and uncoupling cars

A-53

Until otherwise ordered by the Secretary of

Transportation, it shall be unlawful for any railroad

company to use any car that is not provided with secure

grab irons or handholds in the ends and sides of each

car for greater security to men in coupling and

uncoupling cars.

(Mar. 2, 1893, ch. 196, § 4, 27 Stat. 531; Oct. 15, 1966,

Pub. L. 89-670, § 6(e)(1)(A), 80 Stat. 939; June 22, 1988,

Pub. L. 100-342, § 13(1)(D), 102 Stat. 630.)

AMENDMENTS

1988—Pub. L. 100-342 struck out "in interstate

commerce” after "any are’.

TRANSFER OF FUNCTIONS

"Secretary of Transportation" was substituted for

"Interstate Commerce Commission" pursuant to Pub. L.

89-670, which created the Department of Transportation

and transferred all powers, duties, and functions of the

Interstate Commerce Commission and of the Chairman,

members, offices, and officers thereof under this section

relating to safety appliances and equipment on railroad

engines and cars and the protection of employees and

travelers to the Secretary of Transportation. See section

1655(e)(1)(A) of Title 49, Appendix, Transportation.

CROSS REFERENCES

Assumption of risk by employees, see section 7 of

this title.

Railroads in Territories and District of Columbia,

section as applicable to, see section 8 of this title.

A-54

SECTION REFERRED TO IN OTHER SECTIONS

This section is referred to in sections 3, 6, 7, 8, 9,

10, 12, 13, 14, 16, 37, 1013 of this title; title 42 section

4916; title 49 App. section 1655.

§ 5. Standard height of drawbars for freight cars;

noncomplying cars excluded from traffic

No freight cars, either loaded or unloaded, shall

be used which do not comply with the prescribed

standard as to height of drawbars.

(Mar. 2, 1893, ch. 196, § 5, 27 Stat. 531; June 22, 1988,

Pub. L. 100-342, § 13(1)(E), 102 Stat. 630.)

CODIFICATION

Amendment by Pub. L. 100-342, § 13(1)(E)(i), (ii),

which substituted "railroads" for “common carriers" and

struck out "engaged in interstate commerce", was

directed to provisions of section 5 of act Mar. 2, 1893,

which have been omitted from this section. See below.

Section is based on last sentence of section 5 of

act Mar. 2, 1893. The first part of section 5, authorizing

the American Railway Association to designate the

standard height of drawbars and to certify its

determination to the Interstate Commerce Commission,

and requiring the Commission to give notice of the

standard to all common carriers and to determine a

standard if the association failed to do so, was omitted

as executed.

A-55

AMENDMENTS

1988—Pub. L. 100-342 struck out "in interstate

traffic" after "used". See Codification note above.

TRANSFER OF FUNCTIONS

All powers, duties, and functions of the Interstate

Commerce Commission and of the Chairman, members,

offices, and officers thereof under this section relating to

safety appliances and equipment on railroad engines and

cars and the protection of employees and travelers were

transferred to and vested in the Secretary of

Transportation by Pub. L. 89-670, Oct. 15, 1966, 80 Stat.

931, which created the Department of Transportation.

See section 1655(e)(1)(A) of Title 49, Appendix,

Transportation

CROSS REFERENCES

Assumption of risk by employees, see section 7 of

this title.

Railroads in Territories and District of Columbia,

section as applicable to, see section 8 of this title.

Modification of height of drawbars by Interstate

Commerce Commission, see section 12 of this title.

SECTION REFERRED TO IN OTHER SECTIONS

This section is referred to in sections 3, 6, 7, 8, 9,

10, 13, 14, 16, 37, 1013 of this title; title 42 section 4916;

title 49 App. section 1655.

§ 6. Failure to equip cars as provided; duty of United

States attorneys and Secretary of Transportation;

exceptions from operation of provisions

Any person (including a railroad and any

manager, supervisor, official, or other employee or agent

of a railroad) using any locomotive engine, running any

train, or hauling or permitting to be hauled or used on

its line any car in violation of any of the provisions of

sections 1 to 7 of this title, shall be liable to a penalty in

such amount, not less than $250 nor more than $10,000

per violation (with each day of a violation constituting a

separate violation), or where a grossly negligent violation

Or a pattern of repeated violations has created an

imminent hazard of death or injury to persons, or has

caused death or injury, not to exceed $20,000, as the

Secretary of Transportation deems reasonable, except

that a penalty may be assessed agatust an individual only

for a willful violation, such penalty to be assessed by the

Secretary of Transportation and, where compromise is

not reached by the Secretary under sections 3711 and

3716 to 3718 of title 31, recovered in a suit or suits to be

brought by the United States attorney for the judicial

district in which the violation occurred, in which the

individual defendant resides, or in which the defendant

has its principal executive office; and it shall be the duty

of such United States attorney to bring such suits upon

duly verified information being lodged with him of such

violation having occurred; and it shall also be the duty

of the Secretary of Transportation to lodge with the

proper United States attorneys information of any such

violations as may come to his knowledge: Provided, That

nothing in sections 1 to 7 of this title shall apply to

trains composed of four-wheel cars or to trains

composed of eight-wheel standard logging cars where the

height of such car from top of rail to center of coupling

does not exceed twenty-five inches, or to locomotives

A-57

used in hauling such trains when such cars or

locomotives are exclusively used for the transportation

of logs. For purposes of this section, an act by an

individual that causes a railroad to be in violation of any

of the provisions of section 1 to 7 of this title shall be

deemed a violation, and an individual shall be deemed

not to have committed a willful violation where such

individual has acted pursuant to the direct order of a

railroad official or supervisor, under protest

communicated to the supervisor. Such individual shall

have the right to document such protest.

(Mar. 2, 1893, ch. 196, § 6, 27 Stat. 532: Apr. 1, 1896, ch.

87, 29 Stat. 85; June 25, 1948, ch. 646, § 1, 62 Stat. 909;

Aug. 14, 1957, Pub. L. 85-135, § 1(1), 71 Stat. 352; Oct.

15, 1966, Pub. L. 89-670, § 6(e)(1)(A), 80 Stat. 939: July

8, 1976, Pub. L. 94-348, § 3(a), 90 Stat. 818; Nov. 2.

1978, Pub. L. 95-574, § 7(a), 92 Stat. 2461: Oct. 10, 1980,

Pub. L. 96-423, § 8(b), 94 Stat. 1814: June 22, 1988, Pub.

L. 100-342, § 13(1)(f), 102 Stat. 630.)

CODIFICATION

"Sections 3711 and 3716 to 3718 of title 31" was

substituted in text for "the Federal Claims Collection Act

of 1966" on authority of Pub. L. 97-258, § 4(b), Sept. 13,

1982, 96 Stat. 1067, the first section of which enacted

Title 31, Money and Finance, and Pub. L. 97-452, § 3(b),

Jan. 12, 1983, 96 Stat. 2479.

AMENDMENTS

1988—Pub. L. 100-342 substituted "any person

(including a railroad and any manager, supervisor,

official, or other employee or agent of a railroad) using

any locomotive engine, running any train, or hauling or

permitting to be hauled or used on its line any car in

A-58

violation of any of the provisions of sections | to 7 of

this title, shall be liable to a penalty in such amount, not

less than $250 nor more than $10,000 per violation (with

each day of a violation constituting a separate violation),

or where a grossly negligent violation or a pattern of

repeated violations has created an imminent hazard of

death or injury to persons, or has caused death or injury,

not to exceed $20,000, as the Secretary of Transportation

deems reasonable, except that a penalty may be assessed

against an individual only for a willful violation, such

penalty to be assessed by the Secretary of Transportation

and, where compromise is not reached by the Secretary

under sections 3711 and 3716 to 3718 of title 31,

recovered in a suit or suits to be brought by the United

States attorney for the judicial district in which the

violation occurred, in which the individual defendant

resides,” for "Any common carrier engaged in interstate

commerce by railroad using any locomotive engine,

running any train, or hauling or permitting to be hauled

or used on its line any car in violation of any of the

provisions of sections | to 7 of this title, shall be liable

to a penalty of not less than $250 and not more than

$2,500 for each and every such violation, to be assessed

by the Secretary of Transportation and recovered in a

Suit Or suits to be brought by the United States attorney

in the district in which such violation occurred” and

inserted at end "For purposes of this section, an act by

an individual that causes a railroad to be in violation of

any of the provisions of sections 1 to 7 of this title shall

be deemed a violation, and an individual shal! be

deemed not to have committed a willful violation where

such individual has acted pursuant to the direct order of

a railroad official or supervisor, under protest

communicated to the supervisor. Such individual shall

have the right to document such protest."

A-59

|) re ~aeela S

Paths a ak esi

1980—Pub. L. 96-423 substituted "for the judicial

district in which such violation occurred or in which the

defendant has its Principal executive office" for "having

jurisdiction in the locality where such violation shall

have been committed".

1978—Pub. L. 95-574 provided that penalties under

this section be assessed by Secretary of Transportation.

1976—Pub. L. 94-348 Substituted reference to no

less than $250 and not more than $2,500 for reference to

$250.

1957—Pub. L. 85-135 substituted "$250" for "$100".

CHANGE OF NAME

Act June 25, 1948, eff. Sept. 1, 1948, substituted

"United States attorney” for "United States district

attorney” and "district attorney" and substituted "United

States attorneys” for “district attorney". See section 54]

of Title 28, Judiciary and Judicial Procedure, and

Historical and Revision Notes thereunder.

EFFECTIVE DATE OF 1980 AMENDMENT

Amendment by Pub. L. 96-423 effective Oct. 10,

1980, see section 17(a) of Pub. L. 96-423, set out as a

note under section 431 of this title.

TRANSFER OF FUNCTIONS

"Secretary of Transportation", the first ime it

appears, was substituted for "Interstate Commerce

Commission” pursuant to Pub. L. 89-670, which created

the Department of Transportation and transferred all

powers, duties, and functions of the Interstate Commerce

A-60

Commission and of the Chairman, members, offices, and

officers thereof under this section relating to safety

appliances and equipment on railroad engines and cars

and the protection of employees and travelers to the

Secretary of Transportation. See section 1655(e)(1)(A)

of Title 49, Appendix, Transportation.

RAILROAD SAFETY VIOLATIONS; MINIMUM

AMOUNTS FOR COMPROMISED PENALTIES

Penalties assessed under this section not be

compromised by the Secretary for less than $250, see

section 3711 of Title 31, Money and Finance.

CROSS REFERENCES

Assumption of risk by employees, see section 7 of

this title.

Railroads in Territories and District of Columbia,

section as applicable to, see section 8 of this title.

SECTION REFERRED TO IN OTHER SECTIONS

This section is referred to in sections 3, 7, 8, 9, 10,

13, 14, 16, 37, 1013 of this title; title 31 section 3711;

title 42 section 4916; title 49 App. section 1655.

§ 7. Assumption of risk by employees

Any employee of any such railroad who may be

injured by any locomotive, car, or train in use contrary

to the provision of sections 1 to 7 of this title shall not

be deemed thereby to have assumed the risk thereby

occasioned, although continuing in the employment of

such railroad after the unlawful use of such locomotive,

car, or train had been brought to his knowledge.

A-61

(Mar. 2, 1893, ch. 196, § 8, 27 Stat. 532; June 22, 1988.

Pub. L. 100-342, § 13(1)(H), 102 Stat. 631.)

AMENDMENTS

1988—Pub. L. 100-342 Substituted “any such

railroad" for "any such common carrier" and "such

railroad" for "such carrier".

TRANSFER OF FUNCTIONS

All powers, duties, and functions of the Interstate

Commerce Commission and of the Chairman, members.

Offices, and officers thereof under this section relating to

safety appliances and equipment on railroad engines and

cars and the protection of employees and travelers were

transferred to and vested in the Secretary of

Transportation by Pub. L. 89-670, Oct. 15, 1966, 80 Stat.

931, which created the Department of Transportation.

See section 1655(e)(1)(A) of Title 49, Appendix,

Transportation.

CROSS REFERENCES

Assumption of risks of employment, see section 54

of this title.

Railroads in Territories and District of Columbia.

section as applicable to, see section 8 of this title.

Contributory negligence by employees, see section

53 of this title,

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SECTION REFERRED TO IN OTHER SECTIONS

This section is referred to in sections 3, 6, 8, 9, 10,

13, 14, 16, 37, 1013 of this title; title 42 section 4916;

title 49 App. section 1655.

§ 8. Provisions of certain sections extended

The provisions and requirements of sections 1 to

7 of this title shall be held to apply to railroads in the

Territories and the District of Columbia and shall apply

in all cases, whether or not the couplers brought

together are of the same kind, make, or type; and the

provisions and requirements relating to train brakes,

automatic couplers, grab irons, and the height of

drawbars shall be held to apply to all trains, locomotives,

tenders, cars, and similar vehicles used on any railroad,

and in the Territories and the District of Columbia, and

to all other locomotives, tenders, cars, and similar

vehicles used in connection therewith, excepting those

trains, cars, and locomotives exempted by the provisions

of section 6 of this title, or which are used upon street

railways.

(Mar. 2, 1903, ch. 976, § 1, 32 Stat. 943; June 22, 1988,

Pub. L. 100-342, § 13(2)(A), 102 Stat. 631.)

AMENDMENTS

1988—Pub. L. 100-342 struck out "common carriers

by" before "railroads" and "engaged in interstate

commerce" after "railroad".

TRANSFER OF FUNCTIONS |

All powers, duties, and functions of the Interstate

Commerce Commission and of the Chairman, members,

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offices, and officers thereof under this section relating to

safety appliances and equipment on railroad engines and

cars and the protection of employees and travelers were

transferred to and vested in the Secretary of

Transportation by Pub. L. 89-670, Oct. 15, 1966, 80 Stat.

932, which created the Department of Transportation.

See section 1655(e)(1)(A) of Title 49, Appendix,

Transportation.

CROSS REFERENCES

Carriers subject to section generally, see section 1

of this title.

SECTION REFERRED TO IN OTHER SECTIONS

This section is referred to in sections 10, 13, 14,

16, 1013 of this title; title 42 section 4916: title 49 App.

section 1655.

$9. Power or train brakes; operation by engineer;

rules for installation, inspection, maintenance,

and repair

Whenever, as provided in sections 1 to 7 of this

title, any train is operated with power or train brakes not

less than SO per centum of the cars in such train shall

have their brakes used and operated by the engineer of

the locomotive drawing such train; and all power-braked

cars in such train which are associated together with said

50 per centum shall have their brakes so used and

operated; and, to more fully carry into effect the objects

of said sections, the Secretary of Transportation may,

from time to time, after full hearing, increase the

minimum percentage of cars in any train required to be

operated with power or train brakes which must have

their brakes used and operated as aforesaid. The rules,

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-standards, and instructions of the Association of

American Railroads, adopted in 1925 and revised in

1933, 1934, 1941, and 1953, with such revisions as may

have been adopted prior to April 11, 1958, for the

installation, inspection, maintenance, and repair of all

power or train brakes for railroads shall remain the

rules, standards, and instructions for the installation,

inspection, maintenance, and repair of all power or train

brakes unless changed, after hearing, by order of the

Secretary of Transportation: Provided, however, That

such rules or standards or instructions or changes therein

shall be promulgated solely for the purpose of achieving

safety. The provisions and requirements of this section

shall apply to all trains, locomotives, tenders, cars, and

similar vehicles used, hauled, or permitted to be used or

hauled, by any railroad. In the execution of this section,

the secretary of transportation may utilize the services of

the Association of American Railroads, and may avail

himself of the advice and assistance of any department,

commission, or board of the United States government.

and of state governments, but no official or employee of

the United States shall receive any, additional

compensation for such service except as now permitted

by lew. Failure to comply with any rule, regulation, or

requirement promulgated by the Secretary of

Transportation pursuant to the provisions of this section

shall be subject to the like penalty as failure to comply

with any requirement of this section.

(Mar. 2, 1903, ch. 976, § 2, 32 Stat. 943; Apr. 11, 1958,

Pub. L. 85-385, 72 Stat. 86; Oct. 15, 1966, Pub. L. 89-670,

§ 6(e)(1)(B), 80 Stat. 939; June 22, 1988, Pub. L. 100-

342, § 13(2)(B), 102 Stat. 631.)

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CODIFICATION

Provisions of this section for the initial adoption

and implementation by the Interstate Commerce

Commission of the rules, Standards, and instructions of

the Association of American Railroads one hundred and

twenty days after the enactment of the Power or Train

Brakes Safety Appliance Act of 1958, Apr. 11, 1958,

have been omitted as executed.

AMENDMENTS

1988— Pub. L. 100-342 substituted “train brakes for

railroads" for "train brakes for common carriers engaged

in interstate commerce by railroad” and "by any railroad"

for "by any railroad engaged in interstate commerce".

1958—Pub. L. 85-375 required Commission to

adopt and put into effect rules, standards, and

instructions of Association of American Railroads for

installation, inspection, maintenance, and repair of all

power or train brakes.

TRANSFER OF FUNCTIONS

"Secretary of Transportation" was substituted for

‘Interstate Commerce Commission" pursuant to Pub. L.

89-670, which created the Department of Transportation

and transferred all powers, duties, and functions of the

Interstate Commerce Commission and of the Chairman,

members, offices, and officers thereof under this section

relating to safety appliances and equipment on railroad

engines and cars and the protection of employees and

travelers to the Secretary of Transportation. See section

1655(e)(1)(B) of Title 49. Appendix, Transportation.

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SECTION REFERRED TO IN OTHER SECTIONS

This section is referred to in sections 10, 13, 14,

16, 1013 of this title; title 42 section 4916; title 49 App.

section 1655.

§ 10. Former duties, requirements, and _ liabilities

continued unless specifically amended

Nothing in sections 8 to 10 of this title shall be

held or construed to believe any person (including a

railroad and any manager, supervisor, official, or other

employee or agent of a railroad), the Secretary of

Transportation, or any United States attorney from any

of the provisions, powers, duties, liabilities, or

requirements of section 1 to 7 of this title, and all of

such provisions, powers, duties, requirements, and

liabilities of said sections 1 to 7 of this title shall, except

as specifically amended by sections 8 to 10 of this title,

apply thereto.

(Mar. 2, 1903, ch. 976, § 3, 32 Stat. 943; June 25, 1948,

ch. 646, § 1, 62 Stat. 909; Oct. 15, 1966, Pub. L. 89-670,

§ 6(e)(1)(B), 80 Stat. 939; June 22, 1988, Pub. L. 100-

342, § 13(2)(C), 102 Stat. 631.)

AMENDMENTS

1988—Pub. L. 100-342 substituted "person

(including a railroad and any manager, supervisor,

official, or other employee or agent of a railroad)" for

"common carrier".

CHANGE OF NAME

Act June 25, 1948, eff. Sept. 1, 1948, substituted

"United States attorney" for "United States district

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attorney". See section 541 of Title 28, Judiciary and

Judicial Procedure, and Historica] and Revision Notes

thereunder.

TRANSFER FUNCTIONS

"Secretary of Transportation" was substituted for

‘Interstate Commerce Commission" pursuant to Pub. L.

89-670, which created the Department of Transportation

and transferred all powers, duties, and functions of the

Interstate Commerce Commission and of the Chairman,

members, offices, and officers thereof under this section

relating to safety appliances and equipment on railroad

engines and cars and the protection of employees and

travelers to the Secretary of Transportation. See section

1655(€)(1)(B) of Title 49, Appendix, Transportation.

SECTION REFERRED TO IN OTHER SECTIONS

This section is referred to in sections 13, 14, 16,

1013 of this title; title 42 section 4916; title 49 App.

section 1655.

$11. Safety appliances required for each car; when

hand brakes may be omitted

It shall be unlawful for any railroad subject to the

Provisions of sections 11 to 16! of this title to haul, or

permit to be hauled or used on its line, any car subject

to the provisions of said sections not equipped with

appliances provided for in said sections, to wit: All cars

must be equipped with secure sill Steps and efficient

hand brakes; all cars requiring secure ladders and secure

running boards shall be equipped with such ladders and

‘See References in Text note below.

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running boards, and all cars having ladders shall also be

equipped with secure handholds or gram irons on their

roofs at the tops of such ladders: Provided, That in the

loading and hauling of long commodities, requiring more

than one car, the hand brakes may be omitted on all

save one of the cars while they are thus combined for

such purpose.

(Apr. 14, 1910, ch. 160, § 2, 36 Stat. 298; June 22, 1988,

Pub. L. 100-342, § 13(3)(A), 102 Stat. 631.)

REFERENCES IN TEXT

Section 15 of this title, referred to in text within

reference to sections 11 to 16 of this title, was repealed

by Pub. L. 97-449, § 7(b), Jan. 12, 1983, 96 Stat. 2444.

AMENDMENTS

1988—Pub. L. 100-342 substituted "railroad" for

“common carrier”.

TRANSFER OF FUNCTIONS

All powers, duties, and function of the Interstate

Commerce Commission and of the Chairman, members,

offices, and officers thereof under this section relating to

safety appliances and equipment on railroad engines and

cars and the protection of employees and travelers were

transferred to an vested in the Secretary of

Transportation by Pub. L. 89-670, Oct. 15, 1966, 80 Stat.

931, which created the Department of Transportation.

Section 1655(e)(1)(C) of Title 49, Appendix,

Transportation.

SECTION REFERRED TO IN OTHER SECTIONS

This section is referred to in sections 12, 13, 14,

16, 1013 of this title; title 42 section 4916; title 49 App.

section 1655.

§ 12. Safety appliances, as designated by the Secretary

of Transportation to be standards of equipment;

modification of standard height of drawbars

The number, dimensions, location, and manner of

application of the appliances provided for by sections 4

and 11 of this title as designated by the Secretary of

Transportation shall remain as the standards of

equipment to be used on all cars subject to the

provisions of sections 11 to 16! of this title, unless

changed by an order of said Secretary of Transportation

to be made after full hearing and for good cause shown:

and failure to comply with any such requirement of the

Secretary of Transportation shall be subject to a like

penalty as failure to comply with any requirement of

sections 11 to 16? of this title. Said Secretary is given

authority, after hearing, to modify or change, and to

prescribe the standard height of drawbars and to fix the

time within which such modification or change shall

become effective and obligatory, and prior to the time so

fixed it shall be unlawful to use any car or vehicle which

does not comply with the standard now fixed or the

standard so prescribed, and after the time so fixed it

shall be unlawful to use any car or vehicle which does

not comply with the standard so prescribed by the

Secretary.

(Apr. 14, 1910, ch. 160, § 3, 36 Stat. 298; Oct. 15, 1966,

Pub. L. 89-670, § 6(e)(1)(C), 80 Stat. 939; June 22, 1988,

Pub. L. 100-342, § 13(3)(B), 102 Stat. 631.)

A-70

REFERENCES IN TEXT

Section 15 of this title, referred to in text within

reference to sections 11 to 16 of this title, was repealed

by Pub. L. 97-449, § 7(b), Jan. 12, 1983, 96 Stat. 2444.

CODIFICATION

Amendment by section 13(3)(B)(ii), (iii) of Pub.

L. 100-342, which substituted "railroads" and "railroad"

for "common carrier" and "common carrier", respectively,

was directed to provisions of section 3 of Act of Apr. 14,

1910, which required the Interstate Commerce

Commission to give notice of such designation to all

common carriers subject to the provisions of that Act

within 6 months from the passage thereof and which

authorized the Commission, upon full hearing and for

good cause, to extend the period within which any

common carrier had to comply with the provisions of

this section with respect to the equipment of cars

actually in service on Apr. 14, 1910, which provisions

were omitted as executed.

AMENDMENTS

1988—Pub. L. 100-342 struck out "in interstate or

foreign traffic" after "any car or vehicle" in two places.

See Codification note above.

TRANSFER OF FUNCTIONS

"Secretary of Transportation" was substituted for

"Interstate Commerce Commission" pursuant to Pub. L.

89-670, which created the Department of Transportation

and transferred all powers, duties, and functions of the

Interstate Commerce Commission and of the Chairman,

members, offices and officers thereof under this section

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relating to safety appliances and equipment on railroad

engines and cars and the protection of employees and

travelers to the Secretary of Transportation. See section

1655(e)(1)(C) of Title 49, Appendix, Transportation.

SECTION REFERRED TO IN OTHER SECTIONS

This section is referred to in sections 11, 13, 14,

16, 1013 of this title; title 42 section 4916; title 49 App.

section 1655.

§ 13. Penalty for using car not equipped as provided;

hauling car for repairs where equipment becomes

defective; liability for death or injury of employee;

use of chains instead of drawbars

Any person (including a railroad and any

manager, supervisor, official, or other employee or agent

of a railroad) using, hauling, or permitting to be used or

hauled on its line, any car subject to the requirements of

Said sections not equipped as provided in said sections,

Shall be liable to a penalty in such amount, not less than

$250 nor more than $10,000 per violation (with each day

of a violation constituting a separate violation), or where

a grossly negligent violation or a pattern of repeated

volations has created an imminent hazard of death or

injury to persons, or has caused death or injury, not to

exceed $20,000, as the Secretary of Transportation

deems reasonable, except that a penalty may be assessed

against an individual only for willful violation. Such

penalty shall be assessed by the Secretary of

Transportation and, where compromise is not reached by

the Secretary under sections 3711 and 3716 to 3718 of

title 31, recovered as provided in section 6 of this title:

Provided, That where any car shall have been properly

A-72

equipped, as provided in sections 1 to 16’ of this title,

and such equipment shall have become defective or

insecure while such car was being used by such person

upon its line of railroad, such car may be hauled from

the place where such equipment was first discovered to

be defective or insecure to the nearest available point on

the line of railroad on which the car was discovered to

be defective or insecure where such car can be repaired,

or, at the option of a connection person, such car may

be hauled to the nearest available point on the line of

such connection person where such car can be repaired

if such point is no farther than the nearest available

point on the line on which the car was discovered

defective or insecure, without liability for the penalties

imposed by this section or section 6 of this title, if any

such movement is necessary to make such repairs and

such repairs cannot be made except at any such repair

point; and such movement or hauling of such car shall

be at the sole risk of the person doing the moving or

hauling, and nothing in this section shall be construed to

relieve such person from liability in any remedial action

for the death or injury of any railroad employee caused

to such employee by reason of or in connection with the

movement or hauling of such car with equipment which

is defective or insecure or which is not maintained in

accordance with the requirements of sections 1 to 16” of

this title; and nothing in this provision shall be construed

to permit the hauling of defective cars by means of

chains instead of drawbars, in revenue trains or in

association with other cars that are commercially used,

unless such defective cars contain livestock or

"perishable" freight. For purposes of this section, an

individual shall be deemed not to have committed a

willful violation where such individual has acted

*See References in Text note below.

A-73

pursuant to the direct order of a railroad official or

supervisor under protest communicated to the

supervisor. Such individual shall have the right to

document such protest.

(Apr. 14, 1910, ch. 160, § 4, 36 Stat. 299; Aug. 14, 1957,

Pub. L. 85-135, § 1(2), 71 Stat. 352; July 8, 1976, Pub. L.

94-348, § 3(b), 90 Stat. 818; Nov. 2, 1978, Pub. L. 95-574,

§ 7(b), 92 Stat. 2461; Jan. 14, 1983, Pub. L. 97-468, title

VII, § 704, 96 Stat. 2580; June 22, 1988, Pub. L. 100-342,

§ 13(3)(C), 102 Stat. 632.)

REFERENCES IN TEXT

Section 15 of this title, referred to in text within

reference to sections 1 to 16 of this title, was repealed

by Pub. L. 97-449, § 7(b), Jan. 12, 1983, 96 Stat. 2444.

Section 6 of this title, the second time it appears

in text, was in the original "section 6 of this title" and

probably means section 6 of act Mar. 2, 1893, ch. 196, 27

Stat. 532, which is classified to section 6 of this title, and

not section 6 of act Apr. 14, 1910, ch. 160, 36 Stat. 299,

which was classified to section 15 of this title prior to its

repeal by Pub. L. 97-449, § 7(b), Jan. 12, 1983, 96 Stat.

2444.

CODIFICATION

"Sections 3711 and 3716 to 3718 of title 31” was

substituted in text for "the Federal Claims Collection Act

of 1966” on authority of Pub. L. 97-258, § 4(b), Sept. 13,

1982, 96 Stat. 1067, the first section of which enacted

Title 31, Money and Finance, and Pub. L. 97-452, § 3(b),

Jan. 12, 1983, 96 Stat. 2479.

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AMENDMENTS

1988—Pub. L. 100-342, § 13(3)(C)(i), substituted

"person (including a railroad and any manager,

supervisor, official, or other employee or agent of a

railroad)" for "common carrier subject to sections 11 to

16 of this title”.

Pub. L. 100-342, § 13(3)(C)(ii), substituted

"person" for "carrier" wherever appearing.

Pub. L. 100-342, § 13(3)(C)(iii)-(v), substituted "in

such amount, not less than $250 nor more than $10,000

per violation (with each day of a violation constituting a

separate violation), or where a grossly negligent violation

or a pattern of repeated violations has created an

imminent hazard of death or injury to persons, or has

caused death or injury, not to exceed $20,000, as the

Secretary of Transportation deems reasonable, except

that a penalty may be assessed against an individual only

for a willful violation. Such penalty shall” for "of not less

than $250 and not more than $2,500 for each and every

such violation, to" and "and, where compromise is not

reached by the Secretary under sections 3711 and 3716

to 3718 of title 31, recovered" for "and recovered" and

inserted at end "For purposes of this section, an

individual shall be deemed not to have committed a

willful violation where such individual has acted

pursuant to the direct order of a railroad official or

supervisor under protest communicated to the

supervisor. Such individual shall have the right to

document such protest."

1983—Pub. L. 97-468 substituted "on the line of

railroad on which the car was discovered to be defective

or insecure where such car can be repaired, or, at the

option of a connection carrier, such car may be hauled

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to the nearest available point on the line of such

connecting carrier where such car can be repaired if

such point is no farther than the nearest available point

on the line on which the car was discovered defective or

insecure, without liability for the penalties imposed by

this section or section 6 of this title, if any such

movement is necessary to make such repairs and such

repairs cannot be made except at any such repair point;

and such movement or hauling of such car shall be at

the sole risk of the carrier doing the moving or hauling,"

for "where such car can be repaired, without liability for

the penalties imposed by this section or section 6 of this

title, if such movement is necessary to make such repairs

and such repairs cannot be made except at such repair

point; and such movement or hauling of such car shall

be at the sole risk of the carrier,".

1978—Pub. L. 95-574 provided that penalties under

this section be assessed by Secretary of Transportation.

1976—Pub. L. 94-348 substituted reference to not

less than $250 and not more than $2,500 for reference to

$250.

1957—Pub. L. 85-135 substituted "$250" for $100".

TRANSFER OF FUNCTIONS

All powers, duties, and functions of the Interstate

Commerce Commission and of the Chairman, members,

offices, and officers thereof under this section relating to

safety appliances and equipment on railroad engines and

cars and the protection of employees and travelers were

transferred to and vested in the Secretary of

Transportation by Pub. L. 89-670, Oct. 15, 1966, 80 Stat.

931, which created the Department of Transportation.

See section 1655(e)(1)(C) of Title 49, Appendix,

Transportation.

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RAILROAD SAFETY VIOLATIONS; MINIMUM

AMOUNTS FOR COMPROMISED PENALTIES

Penalties assessed under this section no to be

compromised by the Secretary for less than $250, see

section 3711 of Title 31, Money and Finance.

§ 14. Liability for using car with defective equipment,

except as specified

Except that, within the limits specified in section

13 of this title the movement of a car with defective or

insecure equipment may be made without incurring the

penalty provided by the statutes, but shall in ail other

respects be unlawful, nothing in sections 11 to 16° of this

title shall be held or construed to relieve any railroad,

the Secretary of Transportation, or any United States

attorney from any of the provisions, powers, duties,

liabilities, or requirements heretofore set out in sections

1 to 10 of this title; and, except as aforesaid, all of such

provisions, powers, duties, requirements, and liabilities

of said sections 1 to 10 of this title shall apply to sections

11 to 16° of this title.

(Apr. 14, 1910, ch. 160, § 5, 36 Stat. 299; Oct. 15, 1966,

Pub. L. 89-670, § 6(e)(1)(C), 80 Stat. 939; June 22, 1988,

Pub. L. 100-342, § 13(3)(D), 102 Stat. 632.)

REFERENCES IN TEXT

Penalty provided by the statutes, referred to in

text, may have reference to the penalty provisions

specified in section 13 of this title.

3See References in Text note below.

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Section 15 of this title, referred to in text within

reference to sections 11 to 16 of this title, was repealed

by Pub. L. 97-449, § 7(b), Jan. 12, 1983, 96 Stat. 2444.

AMENDMENTS

1988—Pub. L. 100-342 substituted "railroad" for

“common carrier".

TRANSFER OF FUNCTIONS

"Secretary of Transportation" was substituted for

"Interstate Commerce Commission" pursuant to Pub. L.

89-670, which created the Department of Transportation

and transferred all powers, duties, and functions of the

Interstate Commerce Commission and of the Chairman,

members, offices, and officers thereof under this section

relating to safety appliances and equipment on railroad

engines and cars and the protection of employees and

travelers to the Secretary of Transportation. See section

1655(e)(1)(C) of Title 49, Appendix, Transportation.

SECTION REFERRED TO IN OTHER SECTIONS

This section is referred to in sections 11, 12, 13,

16, 1013 of this title; title 42 section 4916: title 49 App.

section 1655.

§ 15. Repealed. Pub. L. 97-449, § 7(b), Jan. 12, 1983, 96

Stat. 2444

Section, acts Apr. 14, 1910, ch. 160, § 6, 36 Stat.

299; Oct. 15, 1966, Pub. L. 89-670, § 6(€)(1)(C), 80 Stat.

939, provided that it was the duty of the Secretary of

Transportation to enforce the provisions of sections 11

to 16 of this title as to equipment of each car with safety

appliances and that all powers theretofore granted to the

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Interstate Commerce Commission were extended to the

Secretary for the purpose of such enforcement. See

section 501(b) of Title 49, Transportation.

§ 16. Safety Appliance Acts; "railroad" defined

As used in sections | to 16° of this title, commonly

known as the Safety Appliance Acts, the term "railroad"

Shall have the same meaning as when used in the

Federal Railroad Safety Act of 1970 (45 U.S.C. 431 et

seq.).

(Apr. 14, 1910, ch. 160, § 1, 36 Stat. 298; June 22, 1988,

Pub. L. 100-342, § 13(3)(E), 102 Stat. 632.)

REFERENCES IN TEXT

Sections 1 to 16 of this title, commonly known as

the Safety Appliance Acts, referred to in text, was in the

Original "this Act, the Act of March 2, 1893 (35 U.S.C.

1-7), and the Act of March 1903 (45 U.S.C. 8-10),

commonly known as the Safety Appliance Acts". Those

Acts, respectively, are act Apr. 14, 1910, ch. 160, 36 Stat.

298, which is classified to sections 11 to 16 of this title,

act Mar. 2, 1893, ch. 196, 27 Stat. 531, which is classified

to sections 1 to 7 of this title, and act Mar. 2, 1903, ch.

976, 32 Stat. 943, which is classified to sections 8 to 10

of this title.

Section 15 of this title, referred to in text within

reference to sections 1 to 16 of this title, was repealed

by Pub. L. 97-449, § 7(b), Jan. 12, 1983, 96 Stat. 2444.

The Federal Railroad Safety Act of 1970, referred

to in text, is title II] of Pub. L. 91-458, Oct. 16, 1970, 84

Stat. 971, a amended, which is classified generally to

‘See References in Text note below.

A-79

subchapter II (§ 431 et seq.) of chapter 13 of this title.

For complete classification of this Act to the Code, see

Short Title note set out under section 421 of this title

and Tables.

AMENDMENTS

1988—Pub. L. 100-342 amended section generally.

Prior to amendment, section read as follows: "The

provisions of sections 11 to 16 of this title, as to the

equipment of cars with the designated safety appliances

apply to every common carrier and every vehicle subject

to what are commonly known as the ‘Safety Appliance

Acts’ set out in sections 1 to 10 of this title.”

TRANSFER OF FUNCTIONS

All powers, duties, and functions of the Interstate

Commerce Commission and of the Chairman, members.

offices, and officers thereof under this section relating to

safety appliances and equipment on railroad engines and

cars and the protection of employees and travelers were

transferred to and vested in the Secretary of

Transportation by Pub. L. 89-670, Oct. 15, 1966, 80 Stat.

931, which created the Department of Transportation.

See section 1655(e)(1)(C) of Title 49, Appendix,

Transportation.

SECTION REFERRED TO IN OTHER SECTIONS

This section is referred to in sections 11, 12, 13,

14, 1013 of this title; title 42 section 4916: title 49 App.

section 1655.

A-80

§$ 17 to 21. Repealed. Pub. L. 97-468, title VII, § 705,

Jan. 14, 1983, 96 Stat. 2580

Section 17, act May 30, 1908, ch. 225, $§ 1, 2, 35

Stat. 476, related to locomotives to be equipped with

safety ash pans.

Section 18, acts May 30, 1908, ch. 225, $ 3, 35

Stat. 476; June 25, 1948 ch. 646, § 1, 62 Stat. 909; Oct

15, 1966, Pub. L. 89-670, § 6(e)(1)(D), 80 Stat. 939, set

forth penalties for violations and authorized United

States attorneys to bring actions for enforcement of

provisions.

Section 19, acts May 30, 1908, ch. 225, § 4, 35

Stat. 476; Oct. 15, 1966, Pub. L. 89-670, § 6(e)(1)(D), 80

Stat. 939, provided for enforcement of the provisions of

sections 17 to 21 of this title by the Secretary of

Transportation.

Section 20, act May 30, 1908, ch. 225, § 5, 35 Stat.

476, specified those to be included in the term "common

carrier”.

Section 21, act May 30, 1908, ch. 225, § 6, 35 Stat.

476, provided that the provisions of sections 17 to 21 of

this title not be applicable to locomotives on which an

ash pan is not necessary.

§ 22. Inspection of locomotives and appurtenances;

"railroad" defined

The term "railroad", when used in sections 22 to

29 and 31 to 34 of this title, shall have the same

meaning as when used in the Federal Railroad Safety

Act of 1970 (45 U.S.C. 431 et seq.).

(Feb. 17, 1911, ch. 103, § 1, 36 Stat. 913; June 7, 1924,

ch. 355, $ 1, 43 Stat. 659; June 22, 1988, Pub. L. 100-342,

§ 14(1), 102 Stat. 632.)

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REFERENCES IN TEXT

Sections 24 to 27 of this title, referred to in text

within reference to sections 22 to 29 of this title, were

omitted from the Code.

.____ The Federal Railroad Safety Act o 1979, referred

to in text, is title II of Pub. L. 91-458, Oct. 16, 1970, 84

Stat. 971, as amended, which is classified generally to

subchapter II (§ 431 et seq.) of chapter 13 of this title.

For complete classification of this Act to the Code, see

Short Title note set out under section 421 of this title

and Tables.

AMENDMENTS

1988—Pub. L. 100-342 amended section. Prior to

amendment, section read as follows: "When used in

sections 22 to 29 and 31 to 34 of this title, the terms

‘carrier’ and ’common carrier’ means a common carrier

by railroad, or partly by railroad and partly by water,

within the continental United States, subject to subtitle

IV of title 49, excluding street, suburban, and interurban

electric railways unless operated as a part of a general

railroad system of transportation. The term ’railroad’ as

used in said sections shall include all the roads in use by

any common carrier operating a railroad, whether owned

or operated under a contract, agreement, or lease, and

the term ’employees’ as used in said sections shall be

held to mean persons actually engaged in or connected

with the movement of any train."

TRANSFER OF FUNCTIONS

All powers, duties, and functions of the Interstate

Commerce Commission and of the Chairman, members,

offices, and officers thereof under this section relating to

safety appliances and equipment on railroad engines and

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cars and the protection of employees and travelers were

transferred to and vested in the Secretary of

Transportation by Pub. L. 89-670, Oct. 15, 1966, 80 Stat.

931, which created the Department of Transportation.

See section 1655(e)(1)(E) of Title 49, Appendix,

Transportation.

REORGANIZATION PLAN NO. 3 OF 1965

Eff. July 27, 1965, 30 F.R. 9351, 79 Stat. 1320

Prepared by the President and transmitted to the Senate

and the House of Representatives in Congress

assembled, May 27, 1965, pursuant to the

provisions of the Reorganization Act of 1949, 63

Stat. 203, as amended [see 5 U.S.C. 901 et seq.].

LOCOMOTIVE INSPECTION

SECTION 1. TRANSFER OF FUNCTIONS TO

INTERSTATE COMMERCE COMMISSION

Except to the extent inconsistent with the

provisions of section 2(b) hereof, all functions now

vested in the director of locomotive inspection, assistant

directors of locomotive inspection, and district inspectors

of locomotives, including the functions so vested by the

Act of February 17, 1911, ch. 103, 36 Stat. 913, as

amended (45 U.S.C. 22-29; 30-34), and by section 2 of

the Act of March 4, 1915, ch. 169, 38 Stat. 1192, as

amended (45 U.S.C. 30), are hereby transferred to the

Interstate Commerce Commission.

SEC. 2. ABOLITIONS

(a) All offices of director of locomotive

inspection, assistant director of locomotive inspection,

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— Se ee ee, ee ee

and district inspector of locomotives, provided for in the

Acts referred to above (45 U.S.C. 22-34), are hereby

abolished. The Interstate Commerce Commission shall

make such provisions as it deems to be necessary

respecting the winding up of any outstanding affairs of

the officers whose offices are abolished by the provisions

of this reorganization plan.

(b) The functions with respect to dividing the

territory comprising the several States and the District of

Columbia into fifty locomotive boiler-inspection districts,

vested in the director of locomotive inspection by section

4 of the above-mentioned Act of February 17, 1911 (45

U.S.C. 26), are hereby abolished.

SEC. 3. PERFORMANCE OF FUNCTIONS

The Interstate Commerce Commission may from

time to time make such provisions as it shall deem

appropriate authorizing the performance by any Officer,

employee, or organizational entity under the

Commission of any function transferred to the

Commission by the provisions of section 1 of this

reorganization plan, but the Commission may not make

any such provision which is in conflict with section 17(2)

of the Interstate Commerce Act [49 U.S.C. 10304,

10305].

SEC. 4. RECORDS, PROPERTY AND FUNDS

(a) Consonant with section 4 of the

Reorganization Act of 1949, as amended and this

reorganization plan, the Interstate Commerce

Commission shall make such provisions as it shall deem

necessary respecting the transfer or other disposition of

the records and property which are affected by a

reorganization contained in this reorganization plan.

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(b) Unexpended balances of appropriations,

allocations, and other funds, available or to be made

available for the Interstate Commerce Commission for

expenses necessary to carry out locomotive inspection

activities, shall continue to be available therefor under

this reorganization plan.

Director of the Bureau of the Budget shall deem to be

necessary in order to effectuate the foregoing provisions

of this section shall be carried out in such manner as he

shall direct and by such agencies as he shall designate.

SEC. 5. PERSONNEL

(a) The Interstate Commerce Commission may

employ and compensate such personnel as may be

necessary to carry out the functions transferred to the

Commission by this reorganization plan under the

classified civil services and pursuant to the Classification

Act of 1949, as amended [chapter 51 and subchapter III

of chapter 53 of Title 5].

(b) The Interstate Commerce Commission shall

appoint to a position under the classified civil service,

without change in grade or salary, each person who

immediately prior to the taking effect of this

reorganization plan held the office of district inspector

of locomotives. Such appointments shall be deemed to

be made without any break in the service of any

individual concerned and the provisions of this

reorganization plan shall not be deemed to effect an

involuntary separation of any district inspector of

locomotives for the purposes of section 6(d) of the Civil

Services Retirement Act (5 U.S.C. 2256(d) [5 U.S.C.

8336] or for the purposes of any other provision of law.

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. ”

TRANSFER OF FUNCTIONS

All powers, duties, and functions of the Interstate

Commerce Commission and of the Chairman, members,

offices, and officers thereof under Reorg. Plan No. 3 of

1965, relating generally to safety appliances and

equipment on railroad engines and cars and the

protection of employees and travelers, were transferred

to and vested in the Secretary of ‘T ransportation by Pub.

L. 89-670, Oct. 15, 1966, 80 Stat. 931, which created the

Department of Transportation. See section

1655(e)(1)(D) of Title 49, Appendix, Transportation.

MESSAGE OF THE PRESIDENT

To the Congress of the United States:

I transmit herewith Reorganization Plan No. 3 of

1965, prepared in accordance with the Reorganization

Act of 1949, as amended, and providing for

reorganization of the locomotive inspection activities of

certain personnel employed by or attached to the

Interstate Commerce Commission.

I have stressed that we must reorganize and

modernize the Government’s Organization structure in

order to focus responsibilities, increase efficiency, and

meet present-day needs more effectively. The

reorganization plan which accords with recommendations

made to me by the Interstate Commerce Commission,

Supports these objectives. It will make possible

necessary changes in the organization and administration

of the Commission’s railroad safety operations.

The Commission’s ability to organize and carry

out most effectively its responsibilities for railroad safety

is now severely limited by certain anachronistic

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provisions of the locomotive inspection statutes. These

provisions go back to an earlier period before steam

locomotives were replaced almost completely by diesel

engines. At that time locomotive boilers were

temperamental and dangerous and special measures

were required to enforce adequate safety standards.

Present law specifies in detail the method of appointing

locomotive inspectors, the functions to be performed by

them, and the organization structure for administering

inspection activities. While these provisions may have

been suited to conditions 50 years ago, they are clearly

inappropriate today.

Progress in railroad technology has not eliminated

the need for locomotive inspection. Locomotive

inspection is still essential for the safety of employees,

passengers, and cargo. The Interstate Commerce

Commission, however, properly should not be held to

account for the performance of this important function

as long as it lacks authority to make those changes in

organization and operations which it deems necessary to

meet current safety needs and to promote maximum

economy and efficiency. The primary purpose of the

accompanying reorganization plan is to terminate

outdated arrangements which now stand in the way of

the most effective management of the Commission’s

railroad safety program.

Organizational flexibility is at present restricted by

the statutory requirement that there be 50 locomotive

inspection districts and at least 1 inspector for each such

district. The number of inspectors and districts cannot

be adjusted to accommodate to changes in workload or

other relevant factors.

Locomotive inspection is rigidly separated from

related railroad safety activities performed under the

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Interstate Commerce Commission. The locomotive

inspection statutes restrict inspectors of locomotives to

the inspection of locomotives only and prevent the

inspection of locomotives (except brakes and safety

appliances) by other Commission railroad safety

personnel. Thus, the Commission is prevented from

making the most effective utilization of its total staff of

locomotive and train inspectors. In order to eliminate

the present uneconomical duplicate visits to railroad

yards and otherwise to promote the most economical

and effective administration of its railroad safety

responsibilities, the Commission should have the

authority to assign staff to duties for which they may be

qualified by training and experience. The reorganization

plan will make this possible.

Organizational flexibility is hampered further by

the provision for Presidential appointment and Senate

confirmation of a director and two assistant directors of

locomotive inspection. Originally, these officials were to

be selected with reference to their practical knowledge

of the construction and repair of boilers. Later

amendments broadened their responsibilities to embrace

all parts of the locomotive and tender. These clearly are

not policy-making positions, warranting Presidential

appointment. As is now the case with other comparable

positions where appointments should be based primarily

on professional and technical qualifications, personnel

supervising locomotive inspection functions should be

appointed under the classified civil service.

By eliminating the present cumbersome

restrictions on inspection districts, the duties of

locomotive inspectors, and the appointment of the

director and assistant directors of locomotive inspection,

the plan will make it possible for the Commission to

utilize its personnel more efficiently, integrate the work

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performed by locomotive inspectors with that performed

by other Commission railroad safety inspectors, and take

full advantage of recent improvements in the

organization of the Commission’s central office and field

activities.

Upon the taking effect of the reorganization plan—

(1) All functions of the director of locomotive

inspection, the assistant directors of locomotive

inspection, and the district locomotive inspectors will be

transferred to the Interstate Commerce Commission.

Suitable powers of delegation with respect to the

functions so transferred will be conferred upon the

Commission.

(2) The position of director of locomotive

inspection, the two positions of assistant director of

locomotive inspection, and all positions of district

locomotive inspector will be abolished. The Commission

will be required to appoint to a position under the

classified civil service, as provided in the reorganization

plan, each person who immediately prior to the taking

effect of the plan held the office of district inspector of

locomotives; such appointments will be deemed to be

made without any break in service.

(3) The function of dividing the territory

comprising the several States and the District of

Columbia into 50 locomotive-boiler-inspection districts

will be abolished.

After investigation, I have found and hereby

declare that each reorganization included in the

reorganization plan transmitted herewith is necessary to

accomplish one or more of the purposes set forth in

section 2(a) of the Reorganization Act of 1949, as

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amended. I have also found and hereby declare that, by

reason of the reorganizations made by the reorganization

plan, it is necessary to include in the plan the provisions

contained in section 5 thereof. The rates of

compensation thereunder are those which I have found

to prevail in respect of comparable positions in the

executive branch of the Government.

The statutory authority for the exercise of the

functions to be abolished by section 2(b) of the

reorganization plan is contained in section 4 of the act

of February 17, 1911 (ch. 103, 36 Stat. 914, as amended).

The reorganizations provided for in the

reorganization plan will produce some immediate Savings

and significant long-range economies. The latter will

result from future improvements in the Organization and

administration of the affected functions made possible by

the plan. Since the plan will open the way for the more

effective utilization of safety inspection staffs of the

Interstate Commerce Commission, it will yield a

significantly increased measure of safety inspection

activity for each dollar spent for this purpose. It is,

however, impracticable to specify or itemize at this time

the reductions of expenditures which it is probable will

be brought about by the taking effect of the

reorganizations included in the reorganization plan.

Under the accompany reorganization plan, all

essential Government railroad safety services to the

traveling public and employees will continue to be

performed. The plan provides urgently needed

modernization of the organization and procedures in the

Interstate Commerce Commission’s railroad safety

Program. I recommend that the Congress allow the

reorganization plan to become effective.

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LYNDON B. JOHNSON.

THE WHITE HOUSE, MAY 27, 1965.

SECTION REFERRED TO IN OTHER SECTIONS

This section is referred to in sections 23, 28, 29,

30, 34 of this title; title 42 section 4916; title 49 App.

section 1655.

§ 23. Use of unsafe locomotives and appurtenances

unlawful; inspection and tests

It shall be unlawful for any railroad to use or

permit to be used on its line any locomotive unless said

locomotive, its boiler, tender, and all parts and

appurtenances 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

railroad without unnecessary peril to life or limb, and

unless said locomotive, it’s 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 hereinafter provided for.

(Feb. 17, 1911, ch. 103, § 2, 36 Stat. 913; Mar. 4, 1915,

ch. 169, § 1, 38 Stat. 1192; June 7, 1924, ch. 355, § 2, 43

Stat. 659; June 22, 1988, Pub. L. 100-342, § 14(2), 102

Stat. 632.)

REFERENCES IN TEXT

Section 24 to 27 of this title, referred to in text

within reference to sections 22 to 29 of this title, were

omitted from the Code.

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— a "

AMENDMENTS

1988—Pub. L. 100-342 substituted "railroad" for

"carrier" in two places.

TRANSFER OF FUNCTIONS

All powers, duties, and functions of the Interstate

Commerce Commission and of the Chairman, members,

offices, and officers thereof under this section relating to

safety appliances and equipment on railroad engines and

cars and the protection of employees and travelers were

transferred to and vested in the Secretary of

Transportation by Pub. L. 89-670, Oct. 15, 1966, 80 Stat.

931, which created the Department of Transportation.

See section 1655(e)(1)(e) of Title 49, Appendix,

Transportation.

SECTION REFERRED TO IN OTHER SECTIONS

This section is referred to in sections 22, 28, 29,

30, 34 of this title; title 49 App. section 1655.

CODIFICATION

Section 24, acts Feb. 17, 1911, ch. 103, § 3, 36

Stat. 914; Apr. 22, 1940, ch. 124, § 1, 54 Stat. 148; May

27, 1947, ch. 85, § 1, 61 Stat. 120; Oct. 28, 1949, ch. 782,

title XI, $1106(a), 63 Stat. 972; June 22, 1988, Pub. L

100-342, § 14(3), 102 Stat. 633, provided for appointment

and salaries of a director of locomotive inspection and

two assistant directors of locomotive inspection and was

omitted pursuant to Reorg. Plan No. 3 of 1965, eff. July

27, 1965, 30 F.R. 5351, 79 Stat. 1320, set out under

section 22 of this title, which abolished the offices of

director of locomotive inspection, assistant directors of

locomotive inspection, and district inspectors of

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locomotives. Acts June 26, 1918, ch. 105, 40 Stat. 616;

June 7, 1924, ch. 355, § 6, 43 Stat. 659; June 27, 1930,

ch. 644, § 1, 46 Stat. 822, which provided for the pay of

chief inspector, assistant inspectors, and district directors

of locomotives, and related to office allowances for each

inspector, and which were cited as a credit to section 24,

were repeaied by Pub. L. 89-554, § 8(a), Sept. 6, 1966,

80 Stat. 643, 646, 648.

Section 25, acts Feb. 17, 1911, ch. 103, § 3, 36

Stat. 914; June 7, 1924, ch. 355, § 3, 43 Stat. 659; Apr.

22, 1940, ch. 124, § 1, 54 Stat. 148; May 27, 1947, ch. 85,

§ 1, 61 Stat. 120, provided for location of office of

director of locomotive inspection in Washington, D.C.,

and for staffing of such office, and was omitted pursuant

to Reorg. Plan No. 3 of 1965, set out under section 22 of

this title.

Section 26, acts Feb. 17, 1911, ch. 103, § 4, 36

Stat. 914; Apr. 22, 1940, ch. 124, § 1, 54 Stat. 148; May

27, 1947, ch. 85, § 2, 61 Stat. 120, directed director of

locomotive inspection to divide country into 50

locomotive boiler inspection districts os as to most

effectively divide up work of inspector for each such

district and was omitted pursuant to Reorg. Plan No. 3

of 1965, set out under section 22 of this title, which

abolished the offices of director of locomotive

inspection, assistant.directors of locomotive inspection,

and district inspectors of locomotives, together with the

function of the director of locomotive inspection with

respect to dividing the country into districts. Acts June

26, 1918, ch. 105, 40 Stat. 616; June 27, 1930, ch. 644, §

2, 46 Stat. 823, which were cited as a credit to section

26, were repealed by Pub. L. 89-554, § 8(a). Sept. 6,

1966, 80 Stat. 643, 648.

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Section 27, act Feb. 17, 1911, ch. 103, § 4 (par), as

added June 7, 1924, ch. 355, § 4, 43 stat. 659, and

amended Apr. 22, 1940, ch. 124, § 1, 54 Stat. 148,

authorized appointment of 15 additional boiler

inspectors over and above number authorized by section

26 of this title as the needs of the service may require,

and was omitted pursuant to Reorg. Plan No. 3 of 1965,

set Out under section 22 of this title.

§ 28. Rules and instructions as to inspection

Each railroad subject to sections 22 to 29 and 31

to 34 of this title shall file its rules and instructions for

the inspection of locomotive boilers with the chief

inspector within three months after February 17, 1911,

and such rules and instructions shall become obligatory

upon such railroad: Provided, however, That if any

railroad subject to said sections shall fail to file its rules

and instructions the director of locomotive inspection

shall prepare rules and instructions not inconsistent

herewith for the inspection of locomotive boilers, to be

observed by such railroad: which rules and instructions,

a copy thereof being served upon the president, general

manager, Or general superintendent of such railroad,

shall be obligatory, and a violation thereof punished as

hereinafter provided: Provided also, That such railroad

may from time to time change the rules and regulations

herein provided for, but such change shall not take effect

and the new rules and regulations be in force until the

same shall have been filed with and approved by the

Secretary of Transportation. The director of locomotive

inspection shall also make all needful rules, regulations,

and instructions not inconsistent herewith for the

conduct of his office and for the government of the

district inspectors: Provided, however, That all such

rules and instructions shall be approved by the Secretary

of Transportation before they take effect.

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(Feb. 17, 1911, ch. 103, § 5, 36 Stat. 914; Apr. 22, 1940,

ch. 124, § 1, 54 Stat. 148; Oct. 15, 1966, Pub. L. 89-670,

§ 6(e)(1)(E), 80 Stat. 939; June 22, 1988, Pub. L. 100-

342, § 14(4), 102 Stat. 633.)

REFERENCES IN TEXT

Section 24 to 27 of this title, referred to in text

within reference to sections 22 to 29 of this title were

omitted from the Code

CODIFICATION

Provision of this section for the holding of

hearings and approval by the Interstate Commerce

Commission with reference to the rules and instruction

filed by the carriers within three months after Feb. 17,

1911, and provision for the modification of such filed

rules and instructions as required by the Commission,

have been omitted as executed.

AMENDMENTS

1988—Pub. L. 100-342 substituted "railroad" for

“common carrier" before "may from time to time" and

substituted "railroad" for "carrier" wherever appearing.

1940—Act Apr. 22, 1940, substituted "director of

locomotive inspection" for "chief inspector" in two places.

TRANSFER OF FUNCTIONS

"Secretary of Transportation" was substituted for

"Interstate Commerce Commission" pursuant to the Pub.

L. 89-670, which created the Department of

Transportation and transferred all powers, duties, and

functions of the Interstate Commerce Commission and

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of the Chairman, members, offices, and officers thereof

relating to safety appliances and equipment on railroad

engines and cars and the protection of employees and

travelers to the Secretary of Transportation. See section

1655(e)(1)(E) of Title 49, Appendix, Transportation.

The offices of director of locomotive inspection,

assistant directors of locomotive inspection, and district

inspectors of locomotives, together with the function of

the director of locomotive inspection with respect to

dividing the territory comprising the several States and

the District of Columbia into 50 locomotive boiler-

inspection districts, were abolished and all other

functions transferred to the Interstate Commerce

Commission by Reorg. Plan No. 3 of 1965, eff. July 27,

1965, 30 F.R. 9351, 79 Stat. 1320, set out under section

22 of this title.

SECTION REFERRED TO IN OTHER SECTIONS

This section is referred to in sections 22, 23, 29,

30, 34 of this title; title 49 App. section 1655.

§ 29. Duties of district inspectors; inspection and

repairs by railroads; notice to railroad of

condition of boiler; appeal to director and

reexamination; further appeal to Secretary

It shall be the duty of each inspector to become

familiar, so far as practicable, with the condition of each

locomotive boiler ordinarily housed or repaired in his

district, and if any locomotive is ordinarily housed or

repaired in two or more districts, then the director of

locomotive inspection or an assistant shall make such

division between inspectors as will avoid the necessity

for duplication of work. Each inspector shall make such

personal inspection of the locomotive boilers under his

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care from time to time as may be necessary to fully carry

out the provisions of sections 22 to 29 and 31 to 34 of

this title, and as may be consistent with his other duties,

but he shall not be required to make such inspections at

Stated times or at regular intervals. His first duty shall

be to see that the railroads make inspections in

accordance with the rules and regulations established or

approved by the Secretary of Transportation, and that

railroads repair the defects which such inspections

disclose before the boiler or boilers or appurtenances

pertaining thereto are again put in service. Each

railroad subject to such sections shall keep on file the

report of each inspection required by such rules and

regulations and the report showing the repair of the

defects disclosed by the inspection. The rules and

regulations referred to in this section shall prescribe the

manner in which such reports shall be kept. Whenever

any district inspector shall, in the performance of his

duty, find any locomotive boiler or apparatus pertaining

thereto not conforming to the requirements of the law or

the rules and regulations established and approved as

hereinbefore stated, he shall notify the railroad in

writing that the locomotive is not in serviceable

condition, and thereafter such boiler shall not be used

until in serviceable condition: Provided, That a railroad,

when notified by an inspector in writing that a

locomotive boiler is not in serviceable condition, because

of defects set out and described in said notice, may

within five days after receiving said notice, appeal to the

director of locomotive inspection by telegraph or by

letter to have said boiler reexamined, and upon receipt

of the appeal from the inspector’s decision, the director

of locomotive inspection shall assign one of the assistant

directors of locomotive inspection or any district

inspector other than the one from whose decision the

appeal is taken to reexamine and inspect said boiler

within fifteen days from date of notice. If upon such

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reexamination the boiler is found in serviceable

condition, the director of locomotive inspection shall

immediately notify the railroad in writing, whereupon

such boiler maybe put into service without further delay;

but if the reexamination of said boiler sustains the

decision of this district inspector, the director of

locomotive inspection shall at once notify the railroad

owning or operating such locomotive that the appeal

from the decision of the inspector is dismissed, and upon

the receipt of such notice the railroad may, within thirty

days, appeal to the Secretary of Transportation, and

upon such appeal, and after hearing, said Secretary shall

have power to revise, modify, or set aside such action of

the director of locomotive inspection and declare that

said locomotive is in serviceable condition and authorize

the same to be operated: Provided further, That pending

either appeal the requirements of the inspector shall be

effective.

(Feb. 17, 1911, ch. 103, § 6, 36 Stat. 915; Apr. 22, 1940,

ch. 124, § 1, 54 Stat. 148; Oct. 15, 1966, Pub. L. 89-670,

§ 6(€)(1)(E), 80 Stat. 939; Oct. 10, 1980, Pub. L. 96-423,

§ 13, 94 Stat. 1816; June 22, 1988, Pub. L. 100-342, §

14(5), 102 Stat. 633.)

REFERENCES IN TEXT

Sections 24 to 27 of this title, referred to in text

within reference to sections 22 to 29 of this title, were

omitted from the Code.

AMENDMENTS

1988—Pub. L. 100-342 substituted "railroad" and

"railroads" for "carrier" and “carriers”, respectively,

wherever appearing.

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1980—Pub. L. 96-423 substituted "Each carrier

subject to such sections shall keep on file the report of

each inspection required by such rules and regulations

and the report showing the repair of the defects

disclosed by the inspection" for "To this end each carrier

subject to said sections shall file with the inspector in

charge, under the oath of the proper officer or

employee, a duplicate of the report of each inspection

required by such rules and regulations, and shall also file

with such inspector, under the oath of the proper officer

or employee, a report showing the repair of the defects

disclosed by the inspection" and "The rules and

regulations referred to in this section shall prescribe the

manner in which such reports shall be kept" for "The

rules and regulations hereinbefore provided for shall

prescribe the time at which such reports shall be made".

1940—Act Apr. 22, 1940, substituted "director of

locomotive inspection" and "assistant directors of

locomotive inspection" for "chief inspector" and "assistant

chief inspectors" wherever appearing.

EFFECTIVE DATE OF 1980 AMENDMENT

Amendment by Pub. L. 96-423 effective Oct. 10,

1980, see section 17(a) of Pub. L. 96-423, set out as a

note under section 431 of this title.

TRANSFER OF FUNCTIONS

"Secretary of Transportation" was substituted for

"Interstate Commerce Commission" pursuant to Pub. L.

89-670, which created the Department of Transportation

and transferred all powers, duties, and functions of the

Interstate Commerce Commission and of the Chairman,

members, offices, and officers thereof under this section

relating to safety appliances and equipment on railroad

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engines and cars and the protection of employees and

travelers to the Secretary of Transportation. See section

1655(e)(1)(E) of Title 49, Appendix, Transportation.

The offices of director of locomotive inspection,

assistant directors of locomotive inspection, assistant

directors of locomotive inspection, and district inspectors

of locomotive inspection, and district inspectors of

locomotives, together with the function of the director of

locomotive inspection with respect to dividing the

territory comprising the several States and the District of

Columbia into 50 locomotive boiler-inspection districts,

were abolished and all other functions transferred to the

Interstate Commerce Commission by Reorg. Plan No. 3

of 1965, eff. July 27, 1965, 30 F.R. 9351, 79 Stat. 1320,

set out under section 22 of this title.

SECTION REFERRED TO IN OTHER SECTIONS

This section is referred to in sections 22, 23, 28,

30, 34 of this title; title 49 App. section 1655.

§ 30. Powers and duties of inspectors, and provisions of

certain sections applicable to all parts of

locomotive and tender; examinations of inspectors

The director of locomotive inspection ant the two

assistant directors of locomotive inspection, together

with all the district inspectors, appointed as hereinbefore

provided, shall inspect and shall have the same powers

and duties with respect to all the parts and

appurtenances of the locomotive and tender that they

have with respect to the boiler of a locomotive and the

appurtenances thereof, and the provision of sections 22

to 29 and 31 to 34 of this title as to the equipment of

locomotives shall apply to include the entire locomotive

and tender and all their parts with the same force and

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effect as it applies to locomotive boilers and their

appurtenances. All inspectors and applicants for the

position of inspector shall be examined touching their

qualifications and fitness with respect to the additional

duties imposed.

(Mar. 4, 1915, ch. 169, § 2, 38 Stat. 1192; Apr. 22, 1940,

ch. 124, § 2, 54 Stat. 148.)

REFERENCES IN TEXT

Sections 24 to 27 of this title, referred to in text

within reference to sections 22 to 29 of this title, were

omitted from Code.

AMENDMENTS

1940—Act Apr. 22, 1940, substituted "director of

locomotive inspection" for "chief inspector" wherever

appearing.

TRANSFER OF FUNCTIONS

All powers, duties, and functions of the Interstate

Commerce Commission and of the Chairman, members,

offices, and officers thereof under this section relating to

safety appliances and equipment on railroad engines and

cars and the protection of employees and travelers were

transferred to and vested in the Secretary of

Transportation by Pub. L. 89-670, Oct. 15, 1966, 80 Stat.

931, which created the Department of Transportation.

See section 1655(e)(1)(F) of Title 49, Appendix,

Transportation.

The offices of director of locomotive inspection,

assistant directors of locomotive inspection, and district

inspectors of locomotives, together with the function of

A-101

Tae en a ee eT ee az i — .

the director of locomotive inspection with respect to

dividing the territory comprising the several States and

the District of Columbia into 50 locomotive boiler-

inspection districts, were abolished and all other

functions transferred to the Interstate Commerce

Commission by Reorg. Plan No. 3 of 1965, eff. July 27,

1965, 30 F.R. 9351, 79 Stat. 1320, set out under section

22 of this title.

SECTION REFERRED TO IN OTHER SECTIONS

This section is referred to in title 49 App. section

1655.

§ 31. Annual report of director

The director of locomotive inspection shall make

an annual report to the Secretary of Transportation of

the work done during the year, and shall make such

recommendations for the betterment of the service as he

may desire.

(Feb. 17, 1911, ch. 103, ch. 103, § 7, 36 Stat. 916; Apr.

22, 1940, ch. 124, § 1, 54 Stat. 148; Oct. 15, 1966, Pub. L.

89-670, § 6(e)(1)(E), 80 Stat. 939.)

AMENDMENTS

1940—Act Apr. 22, 1940, substituted "director of

locomotive inspection" for "chief inspector" wherever

appearing.

TRANSFER OF FUNCTIONS

"Secretary of Transportation" was substituted for

"Interstate Commerce Commission" pursuant to Pub. L.

89-670, which created the Department of Transportation

A-102

and transferred all powers, duties, and functions of the

Interstate Commerce Commission and of the Chairman,

members, offices and officers thereof under this section

relating to safety appliances and equipment on railroad

engines and cars and the protection of employees and

travelers to the Secretary of Transportation. See section

1655(e)(1)(E) of Title 49, Appendix, Transportation.

The offices of director of locomotive inspection,

assistant directors of locomotive inspection, and district

inspectors of locomotives, together with the function of

the director of locomotive inspection with respect to

dividing the territory comprising the several States and

the District of Columbia into 50 locomotive boiler-

inspection districts, were abolished and all other

functions transferred to the Interstate Commerce

Commission by Reorg. Plan No. 3 of 1965, eff. July 27,

1965, 30 F.R. 9351, 79 Stat. 1320, set out under section

22 of this title.

SECTION REFERRED TO IN OTHER SECTIONS

This section is referred to in sections 22, 23, 28,

29, 30, 34 of this title; title 49 App. section 1655.

§ 32. Report by railroad to director as to accident;

preservation of disabled parts; investigation and

report thereupon

In the case of accident resulting from failure from

any cause of a locomotive boiler or its appurtenances,

resulting in serious injury or death to one or more

persons, a statement forthwith must be made in writing

of the fact of such accident, by the railroad owning or

operating said locomotive, to the director of locomotive

inspection. Whereupon the facts concerning such

accident shall be investigated by the director of

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- rene

locomotive inspection or one of his assistants, or such

inspector as the director of locomotive inspection may

designate for that purpose. And where the locomotive

is disabled to the extent that it cannot be run by its own

Steam, the part or parts affected by the said accident

shall be reserved by said railroad intact, so far as

possible, without hindrance or interference to traffic

until after said inspection. The director of locomotive

inspection or an assistant or the designated inspector

making the investigation shall examine or cause to be

examined thoroughly the boiler or part affected, making

full and detailed report of the cause of the accident to

the director of locomotive inspection.

(Feb. 17, 1911, ch. 103, § 8, 36 Stat. 916; Apr. 22, 1940,

ch. 124, § 1, 54 Stat. 148; June 22, 1988, Pub. L. 100-342.

$ 14(6), 102 Stat. 633.)

AMENDMENTS

1988—Pub. L. 100-342 substituted "railroad" for

“carrier” in two places.

1940—Act Apr. 22, 1940, substituted "director of

locomotive inspection" for "chief inspector" wherever

appearing.

TRANSFER OF FUNCTIONS

The functions, powers, and duties under this

section which were transferred to the Secretary of

Transportation by section 6(e)(1)(E) of Pub. L. 89-670,

Oct. 15, 1966, 80 Stat. 938 [section 1655(e)(1)(E) of Title

49, Appendix, Transportation], were transferred to the

national Transportation Safety Board within the

Department of Transportation by section 5(b) of Pub. L.

89-670, which also directed the Board to exercise such

A-104

functions, powers, and duties with regard to (1)

determining the cause or probable cause of

transportation mining the cause or probable cause of

transportation accidents and reporting the facts,

conditions, and circumstances relating to such accidents

and (2) reviewing on appeal the suspension, amendment,

modification, revocation, or denial of any certificate or

license issued by the Secretary or by an Administrator.

Section 5 of Pub. L. 89-670 was repealed by Pub. L. 93-

633, title III, § 308(1), Jan. 3, 1975, 88 Stat. 2173. Pub.

L. 93-633, title III, § 304 [enacting sections 1902 and

1903 of Title 49, Appendix], established the National

Transportation Safety Board as an independent Agency

of the United States on and after Apr. 1, 1975, and

directed that the Board investigate or cause to be

investigated and determine the facts, conditions, and

circumstances and the cause or probable cause of causes

of any railroad accident in which there is a fatality,

substantial property damage, or which involves a

passenger train, and report in writing on the facts,

conditions, and circumstances of each accident

investigated.

All powers, duties, and functions of the Interstate

Commerce Commission and of the Chairman, members,

offices, and officers thereof under this section relating to

safety appliances and equipment on the railroad engines

and cars and the protection of employees and travelers

were transferred to and vested in the Secretary of

Transportation by Pub. L. 89-670, Oct. 15, 1966, 80 Stat.

931, which created the Department of Transportation.

See section 1655(e)(1)(E) of Title 49, appendix,

Transportation.

The offices of director of locomotive inspection,

assistant directors of locomotive inspection, and district

inspectors of locomotives, together with the function of

A-105

a | bie :

a sialic tata oe PEAT: JPA MIRE GO RAIN

the director of locomotive inspection with respect to

dividing the territory comprising the several States and

the District of Columbia into 50 locomotive boiler-

inspection districts, were abolished and all other

functions transferred to the Interstate Commerce

Commission by Reorg. Plan No. 3 of 1965, eff. July 27,

1965, 30 F.R. 9351, 79 Stat. 1320, set out under section

22 of this title.

SECTION REFERRED TO IN OTHER SECTIONS

This section is referred to in sections 22, 23, 28,

29, 30, 33, 34 of this title; title 49 App. section 1655.

§ 33. Reports by Secretary of investigations

The Secretary of Transportation may at any time

call upon the director of locomotive inspection for a

report of any accident embrace in section 32 of this title.

and upon the receipt of said report, if he deems it to°

the public interest, make reports of such investigations,

Stating the cause of accident, together with such

recommendations as he deems proper. Such reports

Shall be made public in such manner as the Secreta

deems proper. Neither said report nor any report of

said investigation nor any part thereof shall be admitted

as evidence or used for any purpose in any Suit or action

for damages growing out of any matter mentioned in

said report or investigation.

(Feb. 17, 1911, ch. 103, § 8, 36 Stat. 916; Apr. 22, 1940,

ch. 124, § 1, 54 Stat. p Oct. 15, 1966, Pub. L. 89-670, §

6(e)(1)(E), 80 Stat. 939; Jan. 3, 1975, Pub. L. 93-633.

title III, $ 304, 88 Stat 2168.)

*So in original. Probably should be "to be in".

A-1(4

AMENDMENTS

1940—Act Apr. 22, 1940, substituted "director of

locomotive inspection" for "chief inspector" wherever

appearing.

TRANSFER OF FUNCTIONS

The functions, powers, and duties under this

section which were transferred to the Secretary of

Transportation by section 6(e)(1)(E) of Pub. L. 89-670,

Oct. 15, 1966, 80 Stat. 938 [section 1655(e)(1)(E) of Title

49, Appendix, Transportation], were transferred to the

National Transportation Safety Board within the

Department of Transportation by section 5(b) of Pub. L.

89-670, which also directed the Board to exercise such

functions, powers, and duties with regard to (1)

determining the cause or probable cause of

transportation accidents and reporting the facts,

conditions, and circumstances relating to such accidents

and (2) reviewing on appeal the suspension, amendment,

modification, revocation, or denial of any certificate or

license issued by the Secretary or by an Administrator.

Section 5 of Pub. L. 89-670 was repealed by Pub. L. 93-

633, title III, § 308(1), Jan 3, 1975, 8 Stat. 2173. Pub. L.

93-633, Title Ill, § 304 [enacting sections 1902 and 1903

of Title 49, Appendix], established the National

Transportation Safety Board as an independent Agency

of the United States on and after Apr. 1, 1975 and

directed that the Board investigate or cause to be

investigated and determine the facts, conditions, and

circumstances and the cause or probable cause or causes

of any railroad accident in which there is a fatality,

substantial property damage, or which involves a

passenger train, and -report in writing on the facts,

conditions, and circumstances of each accident

investigated,

A-107

"Secretary of Transportation" was substituted for

"Interstate Commerce Commission" pursuant to Pub. L.

89-670, which created the Department of Transportation

and transferred all powers, duties, and functions of the

Interstate Commerce Commission and of the Chairman,

members, offices, and officers thereof relating to safety

appliances and equipment on railroad engines and cars

and the protection of employees and travelers to the

Secretary of Transportation. See section 1655(e)(1)(E)

of Title 49, Appendix, Transportation.

The offices of director of locomotive inspection,

assistant directors of locomotive inspection, and district

inspectors of locomotives, together with the function of

the director of locomotive inspection with respect to

dividing the territory comprising the several States and

the District of Columbia into 50 locomotive boiler-

inspection districts, were abolished and all other

functions transferred to the Interstate Commerce

Commission by Reorg. Plan No. 3 of 1965, eff. July 27,

1965, 30 F.R. 9351, 79 Stat. 1320, set out under section

22 of this title.

SECTION REFERRED TO IN OTHER SECTIONS

This section is referred to in sections 22, 23, 28,

29, 30, 34 of this title; title 49 App. section 1655.

§ 34. Penalty for violations by railroad; duty of United

States attorney to sue therefor; director to give

information; willful violations

Any person (including a railroad and any

manager, supervisor, Official, or other employee or agent

of a railroad) violating sections 22 to 29 and 31 to 34 of

this title, or any rule or regulation made under its

provisions or any lawful order of any inspector, shall be

A-108

liable to a penalty in such amount, not less than $250

nor more than $10,000 per violation (with each day of a

violation constituting a separate violation), or where a

grossly negligent violation or a pattern of repeated

violations has created an imminent hazard of death or

injury to persons, or has caused death or injury, not to

exceed $20,000, as the Secretary of Transportation

deems reasonable, except that a penalty may be assessed

against an individual only for a willful violation. Such

penalty shall be assessed by the Secretary of

Transportation and, where compromise is not reached by

the Secretary under sections 3711 and 3716 to 3718 of

title 31, recovered in a suit or suits to be brought by the

United States attorney for the judicial district in which

the violation occurred, in which the individual defendant

resides, or in which the defendant has its principal

executive office; and it shall be the duty of such

attorneys, subject to the direction of the Attorney

General, to bring such suits upon duly verified

information being lodged with them, respectively, or

such violations having occurred; and it shall be the duty

of the director of locomotive inspection to give

information to the proper United States attorney of all

violations coming to his knowledge. For purposes of this

section, an act by an individual that causes a railroad to

be in violation of any of the provisions of sections 22 to

29 and 31 to 34 of this title, or any rule or regulation

made under its provisions or any lawful order of any

inspector, shall be deemed a violation, and an individual

shall be deemed not to have committed a willful

violation where such individual has acted pursuant to the

direct order of a railroad official or supervisor under

protest communicated to the supervisor. Such individual

shall have the right to document such protest.

(Feb. 17, 1911, ch. 103, § 9, 36 Stat. 916; Apr. 22, 1940,

ch. 124, § 1, 54 Stat. 148; Aug. 14, 1957, Pub. L. 85-135,

A-109

§ 3, 71 Stat. 351; July 8, 1976, Pub. L. 94-348, § 3(c), 90

Stat. 818; Nov. 2, 1978, Pub. L. 95-574, § 7(c), 92 Stat.

2461; Oct. 10, 1980, Pub. L. 96-423, § 8(c), 94 Stat. 1814:

June 22, 1988, Pub. L. 100-342, § 14(7), 102 Stat. 633.)

REFERENCES IN TEXT

Sections 24 to 27 of this title, referred to in text

within reference to sections 22 to 29 of this title, were

omitted from the Code.

CODIFICATION

"Sections 3711 and 3716 to 3718 of title 31’ was

substituted in text for "the Federal Claims Collection Act

of 1966" on authority of Pub. L. 97-258, § 4(b), Sept. 13,

1982, 96 Stat. 1067, the first section of which enacted

Title 31, Money and Finance, and Pub. L. 97-452, § 3(b),

Jan. 12, 1983, 96 Stat. 2479,

AMENDMENTS

1988—Pub. L. 100-342 substituted "Any person

(including a railroad and any manager, supervisor,

official, or other employee or agent of a railroad)

violating sections 22 to 29 and 31 to 34 of this title, or

any rule or regulation made under its provisions or any

lawful order of any inspector, shall be liable to a penalty

in such amount, not less than $250 nor more than

$10,000 per violation (with each day of a violation

constituting a separate violation), or where a grossly

negligent violation or a pattern of repeated violations

has created an imminent hazard of death or injury to

persons, or has caused death or injury, not to exceed

$20,000, as the Secretary of Transportation deems

reasonable, except that a penalty may be assessed

against an individual only for a willful violation. Such

A-110

penalty shall be assessed by the Secretary of

Transportation and, where compromise is not reached by

the Secretary under sections 3711 and 3716 to 3718 of

title 31, recovered in a suit or suits to be brought by the

United States attorney for the judicial district in which

the violation occurred, in which the individual defendant

reside," for "any common carrier violating the provisions

of sections 22 to 29 and 31 to 34 of this title relating to

locomotives, their boilers, tenders, and so forth, or any

rule or regulation made under such provisions or any

lawful order of any inspector shall be liable to a penalty

of not less than $250 and not more than $2,500 for each

and every such violation, to be assessed by the Secretary

of Transportation and recovered in a suit or suits to be

brought by the United States attorney in the district

court of the United States for the judicial district in

which such violation occurred" and inserted at end "For

purposes of this section, an act by an individual that

causes a railroad to be in violation of any of the

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

or any rule or regulation made under its provisions or

any lawful order of any inspector, shall be deemed a

violation, and an individual shall be deemed not to have

committed a willful violation where such individual has

acted pursuant to the direct order of a railroad official

Or supervisor under protest communicated to the

supervisor. Such individual shall have the right to

document such protest."

1980—Pub. L. 96-423 substituted "for the judicial

district in which such violation occurred or in which the

defendant has its principal executive office" for "having

jurisdiction in the locality where such violation shall

have been committed".

A-111

ae ee ee

1978—Pub. L. 95-574 provided that penalties under

this section be assessed by the Secretary of

Transportation.

1976—Pub. L. 94-348 substituted reference to not

less than $250 and not more than $2,500 for reference to

$250.

1957—Pub. L. 85-135 substituted "$250" for "$100".

1940—Act Apr. 22, 1940, substituted "director of

locomotive inspection" for "chief inspector" and struck

out "of locomotive boilers".

EFFECTIVE DATE OF 1980 AMENDMENT

Amendment by Pub. L. 96-423 effective Oct. 10,

1980, see section 17(a) of Pub. L. 96-423, set out as a

note under section 431 of this title.

TRANSFER OF FUNCTIONS

All powers, duties, and functions of the Interstate

Commerce Commission and of the Chairman, members,

offices, and officers thereof under this sections relating

to safety appliances and equipment on the railroad

engines and cars and the protection of employees and

travelers were transferred to and vested in the Secretary

of Transportation by Pub. L. 89-670, Oct. 15, 1966, 80

Stat. 931, which created the Department of

Transportation. See section 1655(e)(1)(E) of Title 49,

Appendix, Transportation.

The offices of director of locomotive inspection,

assistant directors of locomotive inspection, and district

inspectors of locomotives, together with the function of

the director of locomotive inspection with respect to

A-112

dividing the territory comprising the several States and

the District of Columbia into 50 locomotive boiler-

inspection districts, were abolished and all other

functions transferred to the Interstate Commerce

Commission by Reorg. Plan No. 3 of 1965, eff. July 27,

1965, 30 F.R. 9351, 79 Stat. 1320, setvout under section

22 of this title.

RAILROAD SAFETY VIOLATIONS; MINIMUM

AMOUNTS FOR COMPROMISED PENALTIES

Penalties assessed under this section not to be

compromised by the Secretary for less than $250, see

section 3711 of Title 31, Money and Finance.

SECTION REFERRED TO IN OTHER SECTIONS

This section is referred to in sections 22, 23, 28,

29, 30 of this title; title 31 section 3711; title 49 App.

section 1655.

§ 35. Investigations and report by Secretary on block-

signal systems and appliances for automatic

control of trains; evidence

The Secretary of Transportation is directed to

investigate and report on the use of and necessity for

block-signal systems and appliances for the automatic

control of railway trains in the United States. For this

purpose the Secretary is authorized to employ persons

who are familiar with the subject, and may use such of

his own employees as are necessary to make a thorough

examination into the matter.

In transmitting his report to the Congress the

Secretary shall recommend such legislation as to the

Secretary seems advisable.

A-113

a ich Sincintliubatlitnds Sich ei ree

To carry out and give effect to the provision of

this section the Secretary shall have power to issue

subpoenas, administer oaths, examine witnesses, require

the production of books and papers, and receive

depositions taken before any proper officer in any State

or Territory of the United States.

(June 30, 1906, No. 46, 34 Stat. 838; Oct. 15, 1966, Pub.

L. 89-670, § 6(e)(1)(H), 80 Stat. 939.)

TRANSFER OF FUNCTIONS

"Secretary of Transportation" was substituted for

Interstate Commerce Commission" pursuant to Pub. L.

89-670, which created the Department of Transportation

and transferred all powers, duties, and functions of the

Interstate Commerce Commission and of the Chairman,

members, offices, and officers thereof under this section

relating to safety appliances and equipment on railroad

engines and cars and the protection of employees and

travelers to the Secretary of Transportation. See section

1655(e)(1)(H) Title 49, Appendix, Transportation.

SECTION REFERRED TO IN OTHER SECTIONS

This section is referred to in title 49 App. section

1655.

§ 36. Investigation and testing by Secretary of

appliances or systems to promote safety

The Secretary of Transportation is authorized, at

his discretion, to investigate, test experimentally, and

report on the use and need of any appliances or systems

intended to promote the safety of railway operation

which may be furnished in completed shape to the

Secretary for such investigation and test entirely free of

A-114

cost to the Government. For this purpose the Secretary

is authorized to employ persons familiar with the subject

to be investigated and (NOT LEGIBLE), and may also

make use of his regular employees for such purposes.

(May 27, 1908, ch. 200, § 1, 35 Stat. 325; Oct 15, 1966,

Pub. L. 89-670, § 6(e)(1)(I), 80 Stat. 939.)

TRANSFER OF FUNCTIONS

"Secretary of Transportation" was substituted for

"Interstate Commerce Commission" pursuant to Pub. L.

89-670, which created the Department of Transportation

and transferred all powers, duties, and functions of the

Interstate Commerce Commission and of the Chairman,

members, offices, and officers thereof under this section

relating to safety appliances and equipment on railroad

engines and cars and the protection of employees and

travelers to the Secretary of Transportation. See section

1655(e)(1)(1) of Title 49, Appendix, Transportation.

SECTION REFERRED TO IN OTHER SECTIONS

This section is referred to in title 49, section 1655.

§ 37. Inspection of mail cars

Hereafter all inspectors employed for the

enforcement of the provisions of sections 1 to 7 of this

title, as to safety appliances shall also be required to

make examination of the construction, adaptability,

design, and condition of all mail cars used on any

railroad in the United States and make report thereon,

a copy of which report shall be transmitted to the

United States Postal Service.

A-115

(May 27, 1908, ch. 200, § 1, 35 Stat. 325; Mar. 4, 1909,

ch. 299, § 1, 35 Stat. 965: Aug. 12, 1970, Pub. L. 91-375,

§ 4(a), 84 Stat. 773.)

TRANSFER OF FUNCTIONS

All powers, duties and functions of the Interstate

Commerce Commission and of the Chairman, members,

offices and officers thereof under this section relating to

safety appliances and equipment on railroad engines and

cars and the protection of employees and travelers were

transferred to and vested in the Secretary of

Transportation by Pub. L. 89-670, Oct. 15, 1966, 80 Stat.

931, which created the Department of Transportation.

See section 1655(e)(1)(1), (J) of Title 49, Appendix,

Transportation.

"United States Postal Service" was substituted for

"Postmaster General" in text pursuant to Pub. L. 93-375,

§ 4(a), Aug. 12, 1970, 84 Stat. 773, set out as a note

under section 201 of Title 39, Postal Service which

abolished the office of Postmaster General of the Post

Office Department and transferred its functions to the

United States Postal Service.

SECTION REFERRED TO IN OTHER SECTIONS

This section is referred to in title 49 App. section

1655.

§ 38. Monthly reports of railroad accidents; duty of

railroad to make; "railroad" defined

It shall be the duty of the general manager,

superintendent, or other proper officer of every railroad

to make to the Secretary of Transportation a monthly

report, under oath, of all collisions, derailments, or other

A-116

accidents resulting in death or injury to any person or

damage to equipment or roadbed, arising from the

operation of such railroad, which report shall state the

nature and causes thereof and the circumstances

connected therewith: Provided, That hereafter all said

railroads shall be relieved from the duty of reporting

accidents in their annual financial and operating reports

made to the Secretary. The term "railroad" when used

in sections 38 to 43 of this title shall have the same

meaning as when used in the Federal Railroad Safety

Act of 1970 (45 U.S.C. 431 et seq.).

(May 6, 1910, ch. 208, § 1, 36 Stat. 350; Sept. 13, 1960,

Pub. L. 860762, $1, 74 Stat. 903; Oct. 15, 1966, Pub. L.

89-670, $6 (e)(1)(K), 80 Stat. 939; June 22, 1988, Pub. L.

100-342, § 15(1), 102. Stat. 633.)

REFERENCES IN TEXT

The Federal Railroad Safety Act of 1970, referred

to in text, is title II of Pub. L. 91-458, Oct. 16, 1970, 84

Stat. 971, as amended which is classified generally to

subchapter II (§ 431 et seq.) of chapter 13 of this title.

For complete classification of this Act to the Code, see

Short Title note set out under section 421 of this title

and Tables.

AMENDMENTS

1988—Pub. L. 100-342 substituted "every railroad"

for “every common carrier engaged in interstate or

foreign commerce by railroad" and "railroads" for

carriers", and inserted at the end "The term ‘railroad’

when used in sections 38 to 43 of this title shall have the

same meaning as when used in the Federal Railroad

Safety Act of 1970 (45 U.S.C. 431 et. seq.).”

A-117

SE tr bate Marea ae Pil ol

1960—Pub. L. 86-762 substituted "death or injury

to any person or damage to equipment, or roadbed", and

struck out "under such rules and regulations as may be

prescribed by the said commission" after "operation of

such railroad".

SHORT TITLE

Act May 6, 1910, ch. 208, 36 Stat. 350, as

amended, which is classified to sections 38 to 43 of this

title, is popularly known as the “accident Reports Act".

TRANSFER OF FUNCTIONS

"Secretary of Transportation" was substituted for

“Interstate Commerce Commission" pursuant to Pub. L.

89-670, which created the Department of Transportation

and transferred all powers, duties and functions of the

Interstate Commerce Commission and of the Chairman,

members, offices and officers thereof under this section

relating to safety appliances and equipment on railroad

engines and cars and the protection of employees and

travelers to the Secretary of Transportation. See section

1655(e€)(1)(K) of Title 49, Appendix, Transportation.

SECTION REFERRED TO IN OTHER SECTIONS

This section is referred to in sections 39, 41, 42,

43, 43a of this title; title 49 App. section 1655.

§ 39. Penalty for failure to make report

Any railroad failing to make the report provided

for in section 38 of this title within thirty days after the

end of any month shall be deemed guilty of a

misdemeanor, and upon conviction thereof by a court of

competent jurisdiction shall be punished by a fine of not

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more than $100 for each and every offense and for every

day during which it shall fail to make such report after

the time herein specified for making the same.

(May 6, 1910, ch. 208, § 2, 36 Stat. 351; Jan. 3, 1975,

Pub. L. 93-633, title II, § 204(b), 88 Stat. 2166; June 22,

1988, Pub. L. 100-342, § 15(2), 102 Stat. 634.)

AMENDMENTS

1988—Pub. L. 100-342 substituted "railroad" for

“common carrier" and struck out at end "In lieu of the

foregoing, any such carrier may be required to pay a civil

penalty pursuant to subsections (b) and (c) of section

438 of this title."

1975—Pub. L. 93-633 made a carrier liable for

payment of a civil penalty under section 438(b) and (c)

of this title in lieu of a criminal penalty.

TRANSFER OF FUNCTIONS

All powers, duties, and functions of the Interstate

Commerce Commission and of the Chairman, mangers,

offices, and officers thereof under this section relating to

safety appliances and equipment on railroad engines and

cars and the protection of employees and travelers were

transferred to and vested in the Secretary of

Transportation by Pub. L. 89-670, Oct. 15, 1966, 80 Stat.

931, which created the Department of Transportation.

See section 1655(e)(1)(K) of Title 49, Appendix,

Transportation.

A-119

EE EY PO RE PR ah: Seek OS PEMPE yA AES

SECTION REFERRED TO IN OTHER SECTIONS

This section is referred to in sections 38, 42, 43,

43a, 438 of this title; title 42 section 4916; title 49 App.

section 1655.

§ 40. Investigation by Secretary of accidents;

cooperation with State commissions; reports of

investigations

The Secretary of Transportation shall have

authority to investigate all collisions, derailments, or

other accidents resulting in serious injury to person or to

the property of a railroad occurring on the line of any

railroad. The Secretary, or any impartial investigator

thereunto authorized by the Secretary, shall have

authority to investigate such collisions, derailments, or

Other accidents aforesaid, and all the attending facts,

conditions, and circumstances, and for that purpose may

subpena witnesses, administer oaths, take testimony, and

require the production of books, papers, orders,

memoranda, exhibits, and other evidence, and shall be

provided by said railroads with all reasonable facilities:

Provided, That when such accident is investigated by a

commission of the State in which it occurred, the

Secretary of Transportation Shall, if convenient, make

any investigation he may have previously determined

upon, at the same time as, and in connection with, the

State commission investigation. The Secretary shall,

when he deems it to the public interest, make reports of

such investigations, Stating the cause of accident,

together with such recommendations as he deems

Proper. Such reports shall be made public in such

manner as the Secretary deems proper.

(May 6, 1910, ch. 208, § 3, 36 Stat. 351; Oct. 15, 1966,

Pub. L. 89-670, § 6(€)(1)(K), 80 Stat. 939: Jan. 3, 1975,

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Pub. L. 93-633, title II], § 304, 88 Stat. 2168; June 22,

1988, Pub. L. 100-342, § 15(3), 102 Stat. 634.)

AMENDMENTS

1988—Pub. L. 100-342 substituted “any railroad" for

"any common carrier engaged in interstate or foreign

commerce by railroad" and "railroads" for carriers”.

TRANSFER OF FUNCTIONS

The functions, powers, duties, under this section

which were transferred to the Secretary of

Transportation by section 6(e)(1)(K) of Pub. L. 89-670,

Oct. 15, 1866, 80 Stat. 938 [section 1655(e)(1)(K) of

Title 49, Appendix, Transportation], were transferred to

the National Transportation Safety Board within the

Department of Transportation by section 5(b) of Pub. L.

89-670, which also directed the Board to exercise such

functions, powers, and duties with regard to (1)

determining the cause or probable cause of

transportation accidents and reporting the facts,

conditions, and circumstances relating to such accidents

and (2) reviewing on appeal the suspension, amendment,

modification, revocation, or denial of any certificate or

license issued by the Secretary or by an Administrator.

Section 5 of Pub. L. 89-670 was repealed by Pub. L. 93-

633, title III, § 308(1), Jan. 3, 1975, 88 Stat. 2173. Pub.

L. 93-633, title III, § 304 [enacting sections 1902 and

1903 of Title 49, Appendix], established the National

Transportation Safety Board as an independent Agency

of the United States on and after Apr. 1, 1975 and

directed that the Board investigate or cause to be

investigated and determine the facts, conditions, and

circumstances and the cause or probable cause or causes

of any railroad accident in which there is a fatality,

substantial property damage, or which involves a

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Passenger train, and report in writing on the facts,

conditions, and circumstances of each accident

investigated.

"Secretary of Transportation" was substituted for

“Interstate Commerce Commission" pursuant to Pub. L.

89-670, which created the Department of Transportation

and transferred all powers, duties, and functions of the

Interstate Commerce Commission and of the Chairman,

members, offices, and officers thereof under this section

relating to safety appliances and equipment on railroad

engines and cars and the protection of employees and

travelers to the Secretary of Transportation. See section

1655(e)(1)(K) of Title 49, Appendix, Transportation.

SECTION REFERRED TO IN OTHER SECTIONS

This section is referred to in sections 38, 41, 42,

43, 43a of this title; title 42 section 4916; title 49 App.

sections 26, 1655.

§ 41. Reports not evidence in suits for damages

Neither the report required by section 38 of this

title nor any report of the investigation provided for in

section 40 of this title nor nay part thereof shall be

admitted as evidence or used for any purpose in any suit

or action for damages growing out of any matter

mentioned in said report or investigation.

(May 6, 1910, ch. 208, § 4, 36 Stat. 351.)

TRANSFER OF FUNCTIONS

All power, duties, and functions of the Interstate

Commerce Commission and of the Chairman, members,

offices, and officers thereof under this section relating to

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safety appliances and equipment on railroad engines and

cars and the protection of employees and travelers were

transferred to and vested in the Secretary of

Transportation by Pub. L. 89-670, Oct. 15, 1966, 80 Stat.

931, which created the Department of Transportation.

See section 1655(e)(1)(K) of Title 49, Appendix,

Transportation.

SECTION REFERRED TO IN OTHER SECTIONS

This section is referred to in sections 38, 42, 43,

43a of this title; title 42 section 4916; title 49 App.

sections 26, 1655.

§ 42. Rules and regulations; form of reports

The Secretary of Transportation is authorized to

prescribe such rules and regulations and such forms for

making the reports hereinbefore provided as are

necessary to implement and effectuate the purposes of

sections 38 to 43 of this title.

(May 6, 1910, ch. 208, § 5, 36 Stat. 351; Sept. 13, 1960,

Pub. L. 86-762, § 2, 74 Stat. 904; Oct. 15, 1966, Pub. L.

89-670, § 6(e)(1)(K), 80 Stat. 939.)

AMENDMENTS

1960—Pub. L. 86-762 substituted "such rules and

regulations and such forms for making the reports

hereinbefore provided as are necessary to implement

and effectuate the purposes of sections 38 to 43 of this

title’ for "for such common carriers a method and form

for making the reports hereinbefore provided".

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TRANSFER OF FUNCTIONS

"Secretary of Transportation" was substituted for

"Interstate Commerce Commission" pursuant to Pub. L.

89-670, which created the Department of Transportation

and transferred all powers, duties, and functions of the

Interstate Commerce Commission and of the Chairman,

members, offices, and officers thereof under this section

relating to safety appliances and equipment on railroad

engines and cars and the protection of employees and

railroads to the Secretary of Transportation. See section

1655(e)(1)(K) of Title 49, Appendix, Transportation.

SECTION REFERRED TO IN OTHER SECTIONS

This section is referred to in sections 38. 43. 43a

of this title; title 42 section 4916; title 49 App. sections

26, 1655.

§ 43. Penalties for violations by railroads; duty of

United States attorney to sue therefor; willful

violations

Any person (including a railroad and any

manager, supervisor, official, or other employee or agent

of a railroad) violating sections 38 to 43 of this title or

any rule, regulation, order, or standard issued under

sections 38 to 43 of this title or the Federal Railroad

Safety Act of 1970 (45 U.S.C. 431 et seq.] pertaining to

accident reporting or investigations shall be liable or a

penalty in such amount, not less thant® $250 nor more

than $10,000 per violation (with each day of a violation

constituting a separate violation), or where a grossly

negligent violation or a pattern of repeated violations

°So in original. Probably should be "than".

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has created an imminent hazard of death or injury to

persons, or has caused death or injury, not to exceed

$20,000, as the Secretary of Transportation deems

reasonable, except that a penalty may be assessed

against an individual only for a willful violation. Such

penalty shall be assessed by the Secretary of

Transportation and, where compromise is not reached by

the Secretary under sections 3711 and 3716 to 3718 of

title 31, recovered in a suit or suits to be brought by the

United States attorney for the judicial district in which

the violation occurred, in which the individual defendant

resides, or in which the defendant has its principal

executive office. For purposes of this section, an act by

an individual that causes a railroad to be in violation of

any of the provisions of sections 38 to 43 of this title or

any rule, regulation, order, or standard issued under

sections 38 to 43 of this title or the Federal Railroad

Safety Act of 1970 [45 U.S.C. 431 et seq.] pertaining to

accident reporting or investigations shall be deemed not

to have committed a willful violation where such

individual has acted pursuant to the direct order of a

railroad official or supervisor under protest

communicated to the supervisor. Such individual shall

have the right to document such protest.

(May 6, 1910, ch. 208, $ 7, 36 Stat. 351; Sept. 13, 1960,

Pub. L. 86-762, § 3, 74 Stat. 904; June 22, 1988, Pub. L.

100-342, § 15(4), 102 Stat. 634.)

REFERENCES IN TEXT

The Federal Railroad Safety Act of 1970, referred

to in text, is title II of Pub. L. 91-458, Oct. 16, 1970, 84

Stat. 971, as amended, which is classified generally to

subchapter II (§ 431 et seq.) of chapter 13 of this title.

For complete classification of this Act to the Code, see

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Short Title note set out under section 421 of this title

and Tables.

CODIFICATION

"Sections 3711 and 3716 to 3718 of title 31" was

substituted in text for "the Federal Claims Collection Act

of 1966" on authority of Pub. L. 97-258, § 4(b), Sept. 13,

1982, 96 Stat. 1067, the first section of which enacted

Title 31, Money and Finance, and Pub. L. 97-452, § 3(b),

Jan. 12, 1983, 96 Stat. 2479.

AMENDMENTS

1988—Pub. L. 100-342 amended section generally.

Prior to amendment, section read as follows:

"(a) The term ‘interstate commerce,’ as used in

sections 38 to 43 of this title, shall include transportation

from any State or Territory or the District of Columbia

to any other State or Territory or the District of

Columbia, and the term ‘foreign commerce,’ as used in

said sections, shall include transportation from any State

or Territory or the District of Columbia to any foreign

country and from any foreign country to any State or

Territory or the District of Columbia.

"(b) The phrase ‘arising from the Operation of

such railroad,’ as used in sections 38 to 43 of this title,

shall include all activities of the railroad which are

related to the performance of its transportation

business.”

1960—-Pub. L. 86-762 designated existing provisions

as subsec. (a) and added subsec. (b).

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TRANSFER OF FUNCTIONS

All powers, duties, and functions of the Interstate

Commerce Commission and of the Chairman, members,

offices, and officers thereof under this section relating to

safety appliances and equipment on railroad engines and

cars and the protection of employees and travelers were

transferred to and vested in the Secretary of

Transportation by Pub. L. 89-670, Oct. 15, 1966, 80 Stat.

931, which created the Department of Transportation.

See section 1655(e)(1)(K) of Title 49, Appendix,

Transportation.

SECTION REFERRED TO IN OTHER SECTIONS

This section is referred to in sections 38, 42, 43a

of this title; title 42 section 4916; title 49 App. section

1655.

§ 43a. Accident reports

If a railroad, in reporting an accident or incident

under the Accident Reports Act (45 U.S.C. 38 et seq.)

assigns human error as a cause of the accident or

incident, such report shall include, at the option of each

employee whose error is alleged, a statement by such

employee explaining any factors the employee alleges

contributed to the accident or incident.

(Pub. L. 100-342, § 24, June 22, 1988, 102 Stat. 639.)

REFERENCES IN TEXT

The Accident Reports Act, referred to in text, is

act May 6, 1910, ch. 208, 36 Stat. 350, as amended,

which is classified generally to sections 38 to 43 of this

title. For complete classification of this Act to the Code,

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ola aha

re eee

hE CRIES FREE TIE ET INR ath i

Divolel deh SACRA MDA Sn Pika de eae eee

see Short Title note set out under section 38 of this title

and Tables.

$§ 44 to 46. Transferred

CODIFICATION

Section 44, acts Feb. 23, 1905, ch. 744, § 1, 33

Stat. 743; June 13, 1957, Pub. L. 85-50, § 1(1), 71 Stat.

69 relating to awards for acts of heroism involving

railroads or motor vehicles, was transferred to section

1201 of Title 49, Appendix, Transportation.

Section 45, act Feb. 23, 1905, ch.

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