# Appendix — Mickler v. Nimishillen & Tuscarawas Railway Co.

> Briefs, arguments, decisions, and more.

URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386005_1294%3A2

## Record

- **Collection:** Supreme Court brief
- **Document type:** Appendix
- **Published:** January 1, 1994
- **Citation:** 511 U.S. 1084

## Text

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.
I.

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

A-10

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

1
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
a

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

3
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.
V.

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,
v.

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

A-33

———

= 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 .

4
>
4
P|
:
4
7
t
{

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
TO

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.

© 1 dle Es:

:
5
:
i
;
q

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 |

4
3
’
:
"
4
;

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,

A-62

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,

A-63

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,

A-64

-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.)

A-65

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.

A-66

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

A-67

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.

A-68

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

A-71

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.

A-74

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

A-75

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.

A-76

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.

A-77

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

A-78

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.)

A-81

Ea

i
'

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

A-82

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,

A-83

— 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.

A-84

(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.

(c) Such further measures and dispositions as the
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.

A-85

. ”

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

A-86

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

A-87

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

A-88

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

A-89

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.

A-90

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.

A-91

— 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

A-92

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.

A-93

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.

A-94

(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

A-95

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

A-96

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

A-97

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.

A-98

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

A-99

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

A-100

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

A-103

- 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

[Text truncated at 120,000 characters. The full text is on the page linked above.]

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386005_1294%3A2. Public record. Not legal advice.