Petition for Writ of Certiorari — Klineburger v. Maritrans Operating Partners L. P.

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91 = Jf 1S %, | Bupreme Goon US

. FILE Dp

;

NO. | MAR 9 i999

L OFFICE OF THE cuss

IN THE

Supreme Court of the Gnited States

JOSEPH R. KLINEBURGER,

Petitioner,

VS.

MARITRANS, MARITRANS OPERATING PARTNERS L.P.

and MARITRANS G.P., Inc.,

Respondents

PETITION FOR WRIT OF CERTIORARI

TO THE SUPERIOR COURT OF PENNSYLVANIA

AVRAM G. ADLER

MARC S. HENZEL

Counsel of Record

ADLER & KOPS

Attorneys for Petitioner

210 West Washington Square

Second Floor

Philadelphia, PA 19106

(215) 625-9999

THE COPY CENTER, INC. 615 Chestnut Street Philadelphia, PA 19106 215-928-1900

QUESTIONS PRESENTED FOR REVIEW

Whether specific physical contact is

a requirement under the General Maritime

Law and the Jones Act for recovery of a

Captain of a barge carrying an ultra

hazardous cargo of fuel and molten

asphalt, and furnished an inadequate and

shorthanded crew requiring the Captain,

for the safety of the Barge to work

extra watches and to suffer sleep

deprivation over a period of months,

resulting in an emotional disorder with

physiological manifestations.

TABLE OF CONTENTS

Question Presented for Review.....

Table of Contents...... ee ee

Me Oe RO, cg oc cccccccecerce

ES ee

Statutory Provisions Involved.....

Statement of the Case......ccccece

Reasons for Granting the Writ.....

1. The decision below is con-

trary to the mandate of this

Court as to emotional injury

and is contrary to the hold-

ings in the Ninth and Fifth

Circuits of the Courts of

EEE GGG CCK Oe cede nenececs

iii

CONTENTS

TABLE OF CITATIONS

Cases Cited:

Boudoin v. Lykes Bros. S.S. Co.,

348 U.S. 336, 75 S.Ct. 382,

99 L.Ed. 2d 354 (1955) judgment

amended 350 U.S. 811, 76 S.Ct.

38, 100 L.Ed. 727 (1955)........ 38

Buell _ v. Atchison T. & S.F.R. Co.,

771 F.2d 1320 (9th Cir. 1985)... passim

v. Atchiso _.& $.F.R. Co.,

771 F.2d 1320 (1985);

remanded chiso T. & S.F.R.

Co. v. Buell, 480 U.S. 557,

107 $.Ct. 1410, 94 L.Ed. 2d

See CERO i sc canwbe ne bekkbekacs passim

Dice v. Akron, C.&Y.R. Co.,

342 U.S. 359, 72 S.Ct. 312,

OG EcBR. FOG CAOGR) vows dc nccccccs 25

Gaston v. Flowers Transportation,

866 F. 2d 816 (5th Cir. 1989).... 29,30

2i,33

Holliday v. Consolidated Rail

Corporation, 914 F.2d 421

tee eee ee 31

CONTENTS

u v. Mari Marit

j tners and

Maritrans G. P., Inc., (sub

judice) 404 Pa.Super. 490

(1991), 591 A.2da 314,

1991 A.M.C. 2384, Appeal

Denied 600 A.2d 954 (1991)......

Kr Vv onsolidated Rai

Corporation, 723 F.Supp. 1073

(E.D.Pa. 1989), Appeal Dis-

miseed, 899 F.24 1360. ..cccccces

Mahnich v. Southern S.S. Co.,

321 U.S. 96, 64 S.Ct. 455,

a ee eee

McAllister v. Magnolia Petroleum

Co., sof U.S. 2213, 78 &.Ct.

1201, 2 L.Ed. 2d 1272 (1958)....

Mesle v. Kea S.S. Inc., 260 F.2d

Tav CEOey SO Coben tscieceanses

Moody v. Maine C.R. Company, 823

F.2a 693 (1st Cir. 1987)........

Paugh v. Hanks, 6 Ohio St. 3d 72,

451 N.E.2d 759, 765 (1983)......

CONTENTS

Page

’

937 F.2d 1004 (5th Cir. 1991),

Court En Banc argument ordered

2/11/92, __—s F.2d __—s 19992,

WL 22975 (5th Cir. La.)......... passim

Randall v. Reading Company, 54 Cal.

2d 841, 9 Cal.Rptr. 361,

357 Pac.2d 449 (1960)........... 36

Taylor v. Burlington Northern Railway

Company, 787 F.2d 1309

(9th Cir. 0) ee re 18,26

Urie v. Thompson, 337 U.S. 163, 174,

69 S.Ct. 1018, 1027,

93 L.Ed. 1282 (1949)........e00. 25,36

Waldron v. Moore-McCormack Lines,

386 U.S. 724, 87 S.Ct. 1410,

18 L.BA.20 482. (1967) ...ccccccce 38

Statutes Cited:

26 U.8.C. Gemtion 126411) 6 ccccikncs 3

46 U.S.C. § 688 (Jones Act)....... 3

Federal Employers' Liability Act,

§1 et seq., 45 U.S.C.A. §51 et

BOs TRAD psec tec ce re setwesséees 20

Rules Cited:

Supreme Court Rule 10......... cece

Supreme Court Rule 10(c)..........

Other Authorities Cited:

Bell, The Bell Tolls: Toward Full

ecov fe) sychic ury,

36 U.Fla.L.Rev. 333, 337 (1984).

Noyes and Kolb, Modern Clinical

s Bec cccccccececenecesese

Restatement (Second) of Torts §436.

W.Kee ss and Keeton on

Torts, 363 (5th ed. 1984).......

APPENDIX

APPENDIX A - OPINION AND ORDER OF

THE COURT OF COMMON PLEAS

OF PHILADELPHIA COUNTY MOTION

DIVISION - CIVIL ACTION DATED

APRIL, 10, 199O.cccccccssccsesecs

APPENDIX B - OPINION OF THE

SUPERIOR COURT OF PENNSYLVANIA..

APPENDIX C - ORDER OF THE SUPREME

COURT OF PENNSYLVANIA DATED

DECEMBER 11, 199lL.wccccccccccces

19a

39a

vii

CONTENTS

Page

APPENDIX D - AFFIDAVIT OF

PETITIONER FILED IN ANSWER TO

MOTION FOR SUMMARY JUDGMENT..... 40a

NO.

IN THE

SUPREME COURT OF THE UNITED STATES

JOSEPH R. KLINEBURGER,

Petitioner

vs.

MARITRANS, MARITRANS OPERATING

PARTNERS L.P. and MARITRANS G.P., INC.,

Respondents

PETITION FOR WRIT OF CERTIORARI

TO THE SUPERIOR COURT OF PENNSYLVANIA

OPINIONS BELOW

The Petitioner, Joseph R.

Klineburger, respectfully prays that a

writ of certiorari be issued to review

the judgment and opinion of the Superior

Court of the Commonwealth of Pennsylvania

entered in this proceeding on May 22,

1991. The Opinion of the Superior Court

of the Commonwealth of Pennsylvania is

reported at 404 Pa.Super. 490 (1991), 591

A.2d 314, 1991 A.M.C. 2384, Appeal Denied

600 A.2d 954 (1991). The Opinion also

appears in the Appendix hereto. The

denial by the Supreme court of the

Commonwealth of Pennsylvania of the

Petition for Allowance of Appeal of

Joseph R. Klineburger was denied on

December 11, 1991 without Opinion, 600

A.2d 954 (1991). The Opinion rendered by

the Court of Common Pleas’ for

Philadelphia County of the Commonwealth

of Pennsylvania is not reported. The

Opinion appears in the Appendix hereto.

JURISDICTION

The denial of the Petition for

Allowance of Appeal of Joseph R.

Klineburger by the Supreme Court of

Pennsylvania was denied on December ll,

1991. This Petition for Certiorari was

filed within ninety (90) days of that

date. This Court's jurisdiction is

invoked under 28 U.S.c. Section 1254(1).

STATUTORY PROVISIONS INVOLVED

66 ¥.8.C. § 688 (Jones Act)

provides:

Any seaman who shall suffer personal

injury in the course of his

employment may, at his election,

maintain an action for damages at

law, with the right of trial by

jury, and in such action all

statutes of the United States

modifying or extending the common

law right or remedy in cases of

personal injury to railway employees

shall apply; and in case of the

death of any seaman as a result of any

Such personal injury the personal

representative of such seaman may

maintain an action for damages at law

with the right of trial by jury, and in

such action all statutes of the United

States conferring or regulating the right

of action for death in the case of

railway employees shall be applicable.

Jurisdiction in such actions shall be

under the court of the district in which

the defendant employer resides or in

which his principal office is located.

STATEMENT OF THE CASE

Joseph R. Klineburger was an

employee of the defendants and a member

of the crew of the Tanker Barge 71 in the

Capacity of Captain. Barge 71 was owned

and operated by Maritrans, Maritrans

Operating Partners, L.P. and Maritrans

G.P., Inc. On or about July 3, 1986

defendants hired and assigned to Tanker

Barge 71 as a member of the crew, one

Charles Edwards while the Tanker Barge

was under tow. At the outset, Charles

Edwards exhibited severe mental

aberrations in which he spoke about

killing people and about people he had

killed. Edwards played with fire which

was absolutely prohibited aboard this

type of vessel. Edwards blew fire into

the face of one of the crew members.

Edwards later disappeared over the side

of the vessel while the voyage was

underway en route to Providence, Rhode

Island. In addition, Charles Edwards

lacked the necessary papers to act as a

tankerman, causing all watches to be

borne by the Plaintiff and one other

tankerman.

The Barge contained two eight and a

half million B.tT.vu. heaters which

required constant Surveillance. The

heaters have a tendency to catch fire

and, therefore, require constant

Surveillance. They also require huge

inputs of electrical power with the risk

of explosion and fire as a constant. The

Barge is a single-skinned boat containing

thirty thousand gallons of fuel. The

—————

heaters sit on top of the oil and the

crew quarters are on top of the heaters.

There were no valves on deck that could

prevent or stop the flow of fuel oil into

the heaters should the heaters catch

fire. Barge 71 also carried molten

asphalt as a general cargo.

From the time Charles Edwards

disappeared over the Side, plaintiff

protested the sending of a seaman who was

not qualified, like Charles Edwards. The

result was that Charles Edwards was never

replaced and from that moment on, the

vessel carried an inadequate and

incomplete complement aboard the vessel.

Plaintiff repeatedly made requests

for a replacement for Edwards which

became more hysterical and anxiety-ridden

until December 1986 when he could no

eects

longer continue to function as a barge

Captain as a result of exhaustion and

Sleep deprivation and required

hospitalization for his emotional and

psychiatric breakdown. The severe

disabling anxiety and depression had

physiological manifestations resulting in

high blood pressure and protracted

Sleeplessness, which disability has

continued from December 1986 to this

time.

On December 18, 1989, the

defendants, MARITRANS, MARITRANS

OPERATING PARTNERS, L.P. and MARITRANS

G.P. INC., through their counsel, filed a

Motion for Summary Judgment. The

gravamen of the Motion for Summary

Judgment is that a seaman is precluded as

a matter of law from recovering from the

en Na

vessel owner for negligence and against

the vessel for unseaworthiness if he has

suffered merely emotional injury.

Answer to the Motion for Summary

Judgment was filed with affidavits and

the issue joined. (Appendix D) on April

10, 1990, the Honorable G. bp. Cohen

granted the defendants', MARITRANS,

MARITRANS OPERATING PARTNERS, L.P. and

MARITRANS G.P., INC., Motion for Summary

Judgment. Appeal was timely taken to the

Superior Court of the Commonwealth of

Pennsylvania which is the Court of last

resort as of right.

The Superior Court affirmed the

trial court's holding that there could

not be any recovery under General

Principles of Admiralty Law or under the

Jones Act, 46 U.S.c. §688, et seq. for

physical or emotional manifestations of

work related stress. The Court of Common

Pleas and the Superior Court determined,

in accordance with Federal Maritime Law,

that neither the Doctrine of Unsea-

worthiness under the General Maritime Law

nor the Jones Act afforded a remedy for

damages resulting from purely emotionai

injuries, even with physical

manifestations.

At all points in the proceedings,

both in the Court of Common Pleas and in

the Superior Court, the federal question

was conceded.

Following the Decision and Order of

the Superior Court on May 22, 1991

Plaintiff filed Petition for Allowance of

Appeal to the Supreme Court of

Pennsylvania. The Petition for Allowance

Of Appeal is a Procedure that

approximates a Petition for Certiorari in

this Court. On December 11, 1991, the

Petition for Allowance Of Appeal was

denied.

REASONS FOR GRANTING THE WRIT

The decision below is contrary to

the mandate of this Court as to emotional

injury and is contrary to the holdings in

the Ninth and Fifth Circuits of the

Courts of Appeals.

The decision of the highest Appeal

Court as of right in the Commonwealth of

Pennsylvania is in conflict with the

Court of Appeals for the Fifth and Ninth

Circuits as demonstrated in Plaisance vy.

Texaco, Inc., 937 F.2d 1004 (5th Cir.

1991), Court En Banc argument ordered

2/11/92, F.2d 1992, WL 22975 (5th

Cir. La.) and Taylor v. Burlington

| ane

° Llway Company, 787 F.2d 1309

(9th Cir. 1986). See also Bue Vv.

Atchison T. & S.F.R. Co., 771 F.2d 1320

(1985); remanded Atchison, T. & S.F.R.

Co. v. Buell, 480 U.S. 5957, 107 S.Ct.

1410, 94 L.Ed. 24 563 (1987). In

addition, the case sub judice constitutes

a rejection of the mandate set forth by

this Court in Atchison, T.& S.F.R. Co. v.

Buell, supra. Rule 10 of the vu. s.

Supreme Court Rules sets forth the

consideration governing Writ of

Certiorari. A Petition for writ of

Certiorari will be granted only when

there are special and important reasons

therefor. Among the reasons that Warrant

this Court's consideration is when there

has developed a conflict on a federal

question between United States Courts of

bck

Appeals and a State court of last resort,

as in the case sub judice. In addition,

we submit that Rule 10(c) of the Supreme

Court Rules calls for this Court to

exercise its discretion in granting a

Writ of Certiorari when the Superior

Court has ignored its mandates.

The Superior Court of Pennsylvania

has decided an important question of

federal law incorrectly and contrary to

Atchison, T.& S.F.R. Co. y. Buell, supra.

It is not alone in this regard. In

addition, the First, Third, Fourth, Sixth

and Seventh Circuits have failed to heed

this Court's direction that an emotional

injury lacking a physical trigger is

nevertheless within the ambit of injury

as set forth in the Federal Employers'

Liability Act, §1 et seq., 45 U.S.C.A.

§51 et seq. (hereinafter referred to as

"FELA") and the Jones Act.

In coming to the conclusion that

purely emotional injuries, with or

without physical manifestations deserve

redress, the field of decisions were

reviewed by the Fifth Circuit in

Plaisance v. Texaco, inc., 937 F.2d 1004

(Sth Cir,. 1991), Court En Banc argument

ordered 2/11/92, F.2d 1992, WL

22975 (Sth Cir. La.)

In Plaisance v. Texaco, Inc., 937

F.2d 1004 (5th Cir. 1991) the case

involved a tugboat captain and his wife

seeking recovery for emotional injuries

that resulted from witnessing a fire.

Plaisance was a tugboat captain and was

towing a workover barge from one well

location to another in Louisiana coastal

| neal

waters. The barge's spuds projected

below its bottom and came in contact with

an under water four inch gas pipeline.

The pipeline ruptured, the gas escaped,

and an explosion and fire ensued. The

tow was disconnected and the tug was

taken a short distance off. The fire was

confined to the rear of the barge and the

front of the trailing tug. The fire was

extinguished by the combined crews of the

two tugs and the crews of other vessels

which were attracted by the fire. The

entire operation took less than thirty

minutes. No one was injured by the

explosion or the fire.

Several hours later, upon arriving

at the repair dock, Plaisance asked to be

relieved of duty because he did not feel

well. He first went to a local hospital

—eee

for a few days and then transferred to a

psychiatric hospital, where he remained

for some forty-five days. According to

the treating psychiatrist, Plaisance was

suffering from post-traumatic stress,

disorder and depression resulting from

his perception that he and others could

have been injured or killed. Plaisance

sought recovery under the Jones Act for a

purely emotional injury. A motion to

dismiss was filed by Texaco and granted

by the lower court. The Court of Appeals

for the Fifth Circuit, hearing the case

On appeal, took cognizance of the

decision by this Court in Atchison. T. &

S.F.R. Co. vs. Buell, 480 U.S. 557, 107

S.Ct. 1410, 94 L.Ed.2d 563 (1987), which

had considered the issue of recovery for

purely emotional injuries. This Court,

because of the paucity of the record,

declined to decide whether the FELA

permitted recovery in Buell's case. It

did, however, hold:

[tjhe question whether "emotional

injury" is cognizable under the FELA

is not necessarily an abstract point

of law or a pure question of

statutory construction that might be

answerable without exacting scrutiny

of the facts of the case. Assuming,

as we have, that FELA jurisprudence

gleans guidance from common law

developments, whether one can

recover for emotional injury might

rest on a variety of subtle and

intricate distinctions related to

the nature of the injury and the

Character of the tortious

activity... In short, the question

whether one can recover for

emotional injury may not be

Susceptible to an all-inclusive

"yes" or "no" answer. As in other

areas of law, broad pronouncements

in the area may have to bow to the

precise application of developing

legal principles to the particular

facts at hand. (U.S. 568, S.Ct.

1417)

The Plaisance court took note that

the Supreme Court had left open the

question, by Suggesting that the Federal

Courts consult the common law for

guidance. The Plaisance court then went

on to say:

"(wjhat constitutes negligence for

the statute's Purpose is a federal

question, not varying in accordance

with the differing conceptions of

negligence applicable under state

and local laws for other purposes."

ie v. ompson, 337 U.S. 163, 174,

6D &§.Ct. 1018, 1027, 93 L.ka. 1282

(1949); see also Dice v. Akron, C.&

kaRe._£6O,., 342 U.S. 359, 72 S.Ct.

312, 96 L.Ed. 398 (1952).

The Plaisance court viewed the

comments by the Supreme Court in Buell as

an open invitation to the Lower Federal

Courts to explore the parameter of

recovery under the FELA for a purely

emotional injury, citing Moody v. Maine

C.R. Company, 823 F.2d 693 (lst Cir.

1987). It also conducted a circuit

ae ptiies

roundup and came to the conclusion that

other than the Ninth Circuit, in Buell v.

Atchison, T. & S.F.R. Co., 771 F.2d 1320

(9th Cir. 1985) and Taylor v. Burlington

Railwa ompany, 787 F.2d 1309

(9th Cir. 1986), the invitation had been

declined in the First, Third, Fourth,

Sixth and Seventh Circuits.

The Plaisance court took issue with

their Circuit Court brethren in their

reluctance to accept the invitation of

this Court to establish the parameters of

what constitutes an emotional injury and

held that an emotional injury can be

every bit as harmful, debilitating and

destructive of the quality of one's life

as a Physical injury. They therefore

held that a claim for emotional injury

caused by emotional distress negligently

inflicted, even without an accompanying

physical injury or physical contact, is

cognizable under the FELA. The Plaisance

Court reviewed the four basic paradigms

sometimes used: (1) a physical injury or

impact; (2) a zone of danger; (3) being a

bystander; and (4) recovery. (F.2d 1009)

The Plaisance Court went on to say:

The physical injury or impact rule

permits recovery for emotional

injury provided there is some

physical contact. The ostensible

justification for this requirement

is that it affords a semblance of a

guarantee that the mental injury is

genuine. Restatement (Second) of

Torts §436 A comment pb (1965) ;

W on ss a eeton on

Torts, 363 (5th ed. 1984). It

provides a bright line basis for

recovery for an emotional injury.

This rule has been criticized,

however, as being arbitrarily

underinclusive for there are genuine

mental injuries that are not

accompanied by a physical injury or

impact. Buell, 480 U.S. at 569 n.

18, 107 S.Ct. at 1417 n.18 ("The

American Law Institute urges that as

long as the distress is ‘genuine and

severe,‘ bodily harm should not be

required."); :

injury, 36 U.Fla.L.Rev. 333, 337 (1984)

{hereinafter The Bell Tolls). (F.2d 1009)

As to the zone of danger

doctrine, the Plaisance Court decried

its limitation:

While this rubric permits recovery

in some instances excluded by the

Physical injury or impact rule, it

nevertheless suffers from the same

basic failing: it excludes recovery

by persons suffering a genuine

emotional injury. The arbitrary

nature of this rule is best

illustrated by the circumstance that

the difference of a handful of

inches may determine compensation

for emotional distress. (F.2d 1009)

Plaisance, for good reasoning, also

rejected the limiting aspect of the

bystander rule.

As to the full recovery rule the

Fifth Circuit stated:

The full recovery rule permits a

general negligence cause of action

for the infliction of serious

emotional distress. It requires

that the mental injury be evaluated

according to an objective standard.

The plaintiff's claimed emotional

injury must result from a situation

in which a_ reasonable person,

normally constituted, would not be

able to cope adequately with the

mental distress occasioned by the

circumstances. See Prosser and

Keeton on Torts 365 n. 60; see also

Paugh v. Hanks, 6 Ohio St. 34d aa,

451 N.E.2d 759, 765 (1983). (F.2d

1010)

The Fifth Circuit in Plaisance also

quoted Prosser and Keeton on Torts, page

361 that the shibboleths for barring

mental injuries, are just that. The

problem is one of adequate proof and a

remedy should not be denied because some

claims may be false. The Plaisance

court summed up its review:

"There need be little reminder of

the mandated liberal interpretation

to be ascribed to the FELA and Jones

Act. Buell, 480 U.S. at 561-62, 107

S.Ct. at 1413-14; Gaston, 866 F.2d

at 818. We conclude that a rule

which allows recovery for true,

significant mental injuries is best

attuned to that mandate. Having so

stated, we remain vitally aware that

seamen and railroaders have chosen

callings that "involve braving

certain hazards {which]) are

traditionally not well suited to the

squeamish or fainthearted." Gaston,

866 F.2d at 820. In evaluating

Claims of emotional injury, courts

must attribute to those who choose

these callings the appropriate

daring and strength and quality of

character."

The Plaisance court tested the

actions of Plaisance against the

principles they had just enunciated. A

claim lacking validity could be winnowed

out without a broad pronouncement

capturing all other victims in its net.

The Court found that Plaisance was not

threatened by the fire; that fires in the

oil field and the firing of gas are not

unusual sights and that the treating

psychiatrist testified that he was

baffled by Plaisance's overall reaction.

The Court sharing that bafflement,

affirmed the court below.

The principles that had been

enunciated survived to be effective for

valid and deserving cases. The Superior

Court of the Commonwealth of Pennsylvania

conducted no such searching analysis of a

doctrine. It Slavishly followed Kraus v.

S j d i Co Oration, 723

F.Supp. 1073 (E.D.Pa. 1989). Appeal

Dismissed, 899 F.2d 1360; Holliday v.

Consolidated Rail Corporation, 914 F.2d

421 (3rd Cir. 1990), and Gaston Vv.

Flowers Transportation, 866 F.2d 816 (Sth

Cir. 1989). These cases invite scrutiny.

The Superior Court sub judice

adopted the reasoning of Kraus:

“plaintiffs, who allegedly suffer

from stress-related physical or

purely emotional injuries or

illnesses caused by their general

working conditions, fail to state a

Claim under the FELA. Lawyers,

doctors, bus drivers, police

officers, laborers, and, yes, even

judges, face stressful conditions

every working day. To Suggest that

Congress intended to Single out

railroad workers (and seamen under

the Jones Act) as worthy of special

protection from such stress would be

pure folly. Job-related stress is

Simply not the type of problem

intended to be dealt with by the

FELA." 723 F.Supp. at 1090 (footnote

omitted).

The Superior Court summed up the

Kraus decision by saying:

"The court assigned as reason for

its holding a fear of (1) fraud, (2)

a flood of litigation by

disenchanted workers, and (3)

incalculable and potentially

unlimited damages. It also opined

that a contrary rule would create

problems regarding causation and

foreseeability. The court foresaw

also that claims would be open to

the defense of assuming the risk of

stress related injuries by

voluntarily accepting stressful

positions. Such injuries, the

court suggested, are caused by 'too

much -~ not too dangerous -- work."

591 A.2d 314, 317.

This reasoning is rebutted in

Plaisance, supra. It would be folly to

compare the actions of Klineburger

charged with maintaining the safety of an

explosive barge, shorthanded and sleep-

deprived, with lawyers, doctors, bus

drivers, police officers, laborers and

even judges. While they may work hard,

they do not face this condition every

working day for months.

It is up to the litigation system to

weed out the frauds and the excesses. A

back condition or a whiplash is more easy

to feign then the complexities of a

nervous breakdown.

In Gaston v. Flowers Transportation,

866 F.2d 816 (5th Cir. 1989), reliance

by the Superior Court is misplaced.

;

Seeking to use it as a general rule

against a purely emotional injury is not

followed in Plaisance, 937 F.2d 1004.

Gaston merely refuses to follow or

implant bystander liability. In Gaston,

866 F.2d 816 (5th Cir. 1989) the Fifth

Circuit said it is not barring recovery

under the Jones Act for a purely

emotional injury resulting from actions

di against e i iff o an

occurrence that happened _to hin.

(emphasis supplied) |

In the instant case, the

unseaworthiness of the vessel, because of

its undermanning and its inadequate crew,

was a continuing breach of the warranty

of seaworthiness that eroded the defenses

against abuse. Klineburger was no tyro.

He had been going to sea for many years.

He had survived temporary setbacks; he

had seen a man killed; he had been

| involved in fires and he had bounced

back. The prolongation and the constancy

of the unseaworthiness of the vessel by

first putting a dangerous crew member

aboard and when he disappeared over the

Side, failing to replace him, in time

caused Klineburger to be totally disabled

with physiological manifestations : The

AD AbD aril Related wt, Mt aie tet A te

fanciful reasons that were Suggested in

Kraus _v. Consolidated Rail Corporation,

723 F.Supp, 1073 (E.D.Pa. 1989), Appeal

Dismissed, 899 F.2a 1360, to bar

emotional injury defy logic.

The Jones Act talks of injury as

being compensable. Medicine has long

accepted the concept that injury includes

the disruption of an emotional well being

as it would a physical well being.

This Court recognized in Urie v.

Thompson, 337 U.S. 163, 186, 69 S.Ct.

1018, 1033, 93 L.Ed. 2d 1282, that to be

compensable under the FELA an injury need

not be inflicted by external violent or

accidental means. The Court in Urie v.

Thompson, supra, held that continuous

inhalation of silicon dust resulting in

Silicosis is compensable under the FELA

when it results from the employer's

negligence. A railroad in failing to

furnish prompt medical attention to an

employee who suffered a heart attack, has

been found to be compensable. andall v.

Reading Company, 344 F.Supp. 879, 881-82

(MD Pa. 1972). See also McMillan v.

Western Pacific Railroad Co., 54 Cal.2da

841, 9 Cal.Rptr. 361, 357 Pac.2d 449

Selita

(1960).

Seaworthiness is a warranty of

fitness for duty, a concept of the

General Maritime Law. The doctrine

imposes on a vessel owner or its operator

an absolute and nondelegable duty to

provide a vessel that is fit for its

intended purpose for the voyage. See

Mahnich v Southern S.S. Co., 321 U.S. 96,

64 S.Ct. 455, 88 L.Ed. 561 (1944);

M ister v Magnolia Petroleum Se., 387

weme Baa, 76 8.Ct. 1201, 2 L.Ed. 2d 1272

(1958). It requires that the vessel is

a place to work and although the sea is

inherently dangerous, the vessel itself

should be free from hazards.

While it is the usual state of

affairs that a cause of action for

unseaworthiness results from a defective

condition of the vessel, its equipment or

appurtenances, it is also the Maritime

Law that members of the crew of a vessel

are also warranted as seaworthy, ance

there is liability for a crew member who

is not equal to his calling on a vessel

undermanned. Waldron v ore-McCo ck

Lines, 386 U.S. 724, 87 S. Ct. 1410, 18

L. Ed 2d 482 (1967); Boudoin v Lykes

Bros. $.S. Co., 348 U.S. 206, 75 8.¢td.

382, 99 L. Ed. 2d 354 (1955), judgment

amended 350 U.S. 811, 76 S.Ct. 38, 100

L.Ed 727 (1955). See also Mesle v Kea

S.S.Inc., 260 F.2d 747 (3rd Cir. 1963)

which holds as a definition of

unseaworthiness that a vessel owner,

knowing that a certain activity is to

take place, has the absolute duty of

ie a eit hn tes

furnishing such equipment and in this

case, such sufficient and adequate

personnel, as would enable that activity

to be done in reasonable safety.

In the instant case Klineburger is

not a bystander. He is a participant.

The effects of the unseaworthiness of the

vessel are directly visited upon him. He

is the captain of the barge. He has the

ultimate responsibility for multiple

hazards, not only to himself but to the

vessel, to others and to the environment.

He is sitting upon gallons of fuel oil

and molten asphalt in which maintenance

and surveillance and attention are

constant. Beginning in early July and

culminating in December he was given a

crew member who was clearly not equal to

his calling and thereafter an

insufficient complement. These are

fundamental definitions of

ee ee eee

unseaworthiness. Thereafter the vessel

sails with a short complement, doubling

the work and the watches of Klineburger a

situation in which he is in involved in a

hysterical scramble to perform the

necessary duties to maintain any

semblance of safety.

Textbooks have dealt long and well

with combat neuroses. The experiences of

seamen can and do frequently rival battle

fears with a threat of death, plus

intense fatigue which are the

precipitating factors in the production

of combat neuroses. Noyes and Kolb,

ode inic sychiatry, at pg. 449.

Combat neuroses is a combination of fear

and anxiety. It has been said that fear

we ee |

is an emotion experienced in response to

a stimulus having actual reality, one

that either constitutes a present threat

to the individual or portends real

danger. Anxiety, on the other hand, is

an expectation of danger, an emotional

state of apprehensiveness, uncertainty,

and insecurity, that may be produced from

situations symbolic of external danger.

Noyes and Kolb, Modern Clinical

Psychiatry, at pg. 450.

The conditions engendered from the

long term unseaworthiness and the

combination of fear and anxiety in a

context of real danger produced a

condition similar to a combat neurosis

which was not only foreseeable, but was

predictable.

CONCLUSION

For these reasons, it is prayed that

a writ of certiorari should issue to

review the judgment and opinion of the

Superior Court of the Commonwealth of

Pennsylvania.

Respectfully submitted,

AVRAM G. ADLER

Counsel of Record

ADLER & KOPS

Attorneys for Petitioner

ahd ee cter the wi

APPENDIX A - OPINION AND ORDER OF THE

COURT OF COMMON PLEAS OF PHILADELPHIA

COUNTY MOTION DIVISION - CIVIL ACTION

DATED APRIL 10, 1990

COURT OF COMMON PLEAS

OF PHILADELPHIA COUNTY

MOTION DIVISION - CIVIL SECTION

JOSEPH R. KLINEBURGER

Vv.

MARITRANS, MARITRANS

OPERATING PARTNERS,

L.P., AND MARITRANS

G.P., INC.

MAY TERM, 1989

NO. 1067

ORDER

AND NOW, this 10th day of April,

1990, upon consideration of Defendants'

Motion for Summary Judgment and Responses

thereto, it is hereby ORDERED and DECREED

that Summary Judgment in favor of

Defendants Maritrans, Maritrans Operating

Partners, L.P., and Maritrans G.P., Inc.

and against Plaintiff Joseph R.

APPENDIX A

Klineburger is GRANTED.

BY THE COURT:

Zs/_G.D. COHEN

G.D. COHEN, J.

ee eee.

APPENDIX A

COURT OF COMMON PLEAS

OF PHILADELPHIA COUNTY

MOTION DIVISION - CIVIL SECTION

JOSEPH R. KLINEBURGER

Vv.

MARITRANS, MARITRANS

OPERATING PARTNERS,

L.P., AND MARITRANS

MAY TERM, 1989

G.P., INC. NO. 1067

Cohen, J. April 10, 1990

ORAN e) ie) ORDER

The issue before the Court is

whether Defendant's Motion for Summary

Judgment should be granted when Plaintiff

seeks recovery for negligence of

Defendant vessel owner and for

unseaworthiness of Defendant's vessel,

when Plaintiff alleges emotional damages

without any physical tapack.

After consideration of the case law

cited by Plaintiff in this matter, the

APPENDIX A

relevant facts of the case at hand, and

the standard in Summary Judgment

proceedings, the Court finds that

Plaintiff does not have a claim against

Defendant and, therefore, Defendant's

Motion for Summary Judgment should be

granted.

This case began on June 26, 1989

when Plaintiff filed a Complaint alleging

that he suffered psychiatric injuries

including chronic anxiety disorder and

major depression while an

employee/seaman of Maritrans on board the

Maritrans'! Barge Interstate 71.

Plaintiff alleges that Defendants owned,

operated, managed and controlled Barge 71

at all times relevant to this cause of

action and that Plaintiff, employee,

member of the crew

APPENDIX A

and Captain of said vessel developed

severe disabling anxiety and depression

culminating in his being unable to work

Since December, 1986. Plaintiff alleges

that Defendant ship owners were negligent

and Barge 71 was unseaworthy in:

furnishing a member of the crew who was

homicidal and dangerous, not only to the

crew but to himself; requiring Plaintiff

to work with an inadequate and

inappropriate crew; requiring Plaintiff

to stand excessive watches as the result

of the inadequate and inappropriate crew;

and placing equipment aboard the vessel

which required constant’ surveillance.

Plaintiff also alleges that he did not

receive prompt and adequate medical care

which could haver prevented the insidious

APPENDIX A

course of his physical and psychiatric

condition and that Defendants failed to

exercise due care under the circumstances

and exercised a hiring policy that

permitted the hiring of a seaman

dangerous to the crew of the vessel and

to himself. Plaintiff alleges that his

injuries were caused by the negligence

of Defendant, and that solely as the

result of Defendant's negligence,

Plaintiff sustained severe psychiatric

injuries. Plaintiff demands judgment

against Defendants in excess of

$25,000.00 with costs and interest.

On October 20, 1989, at Plaintiff's

deposition, Plaintiff elaborated that his

fellow seaman, Charles Edwards, was a

maniac who could not be trusted on deck

APPENDIX A

and who eventually jumped overboard.

(N/T 16, 28) Plaintiff described

Defendant's actions as peculiar because

he rambled about people who he had killed

in Vietnam and played with his lighter

repeatedly blowing flame into his mouth

with his inhaler. (N/T 23, 28, 29)

Plaintiff stated that on one occasion,

Charles Edwards blew fire into the

tugboat's AB's face. (N/T 23)

Subsequently, Defendant filed a

Motion for Summary Judgment alleging that

Plaintiff's Complaint contained only

allegations that Plaintiff had suffered

psychiatric or emotional injuries as a

direct result of the presence of a fellow

crew member who had been assigned to the

barge. Defendant, therefore, argued that

APPENDIX A

Plaintiff is precluded as a matter of law

from recovering from a vessel owner for

negligence of the vessel and for

unseaworthiness. Defendant for this

reason argued that Plaintiff's claim

against Maritrans must be dismissed.

On January 17, 1990 Plaintiff filed

a Response to Defendant's Motion for

Summary Judgment. Plaintiff admits that

on June 26 Plaintiff filed a Complaint

and states that the Complaint speaks for

itself. Plaintiff further alleged that

Defendants knowingly placed a seaman not

equal to his calling on Barge 71 causing

Plaintiff to suffer chronic anxiety

disorder and depression culminating in

psychological symptoms including but not

limited to high blood pressure that

APPENDIX A

rendered Plaintiff an industrial non-

descript. Plaintiff denies that he only

encountered the defective seaman several

times over the three-day period when the

latter was on the vessel. Plaintiff

Similarly contends that the encounters

were threatening or intimidating to

Plaintiff, and that the presence of

Edwards was a continuous and oppressive

presence causing psychological damage.

Plaintiff contends that he did not merely

suffer emotional injury but that he

suffered severe anxiety disorder and

major depression with psychological

manifestations and psychiatric injuries

as a result of the negligence of the ship

Owner and the unseaworthiness of the

vessel. Plaintiff accordingly denies

10a

APPENDIX A

that he is precluded as a matter of law

from recovering from vessel owner for

negligence and against Defendant Barge

for unseaworthiness. Plaintiff contends

that he suffered psychiatric injuries

including chronic anxiety disorder and

major depression while an employee/seaman

of Defendant on board the Maritrans'!

Barge Interstate 7].

Subsequent to the Court's receipt of

the aforesaid pleadings, the Court held

oral argument on the matter. As a

result or Plaintiff's representations,

Plaintiff was granted additional time in

which to file any Supporting case law.

While the Court patiently awaited

Plaintiff's Supplemental Brief, Defendant

filed a Supplemental Brief stating that

lla

APPENDIX A

federal "maritime" law applies to the

Substantive issues of the Motion , that

even application of Pennsylvania law

precludes recovery, and that Plaintiff

was a bystander entitled to no recovery

from Defendant.

The Court finds that federal

admiralty law applies to the substantive

issues before it, that Pennsylvania law

applies to the procedural issues, that

Plaintiff's Supplemental Brief on the

substantive issues’ contained clearly

distinguishable cases and that Defendant

is thereby entitled to Summary Judgment.

According to Pennsylvania law,a

Motion for Summary Judgment:

"...Shall be rendered if the

pleadings, depositions, answers to

ial

12a

APPENDIX A

interrogatories, and admissions on file,

together with the affidavits, if any,

show that there is no genuine issue as to

any material fact and that the moving

party is entitled to judgment as a matter

of law."

Rule 1035, Pennsylvania Rules of Civil

Procedure. See also, McDonald _ vy.

Marriott Corporation, 564 A.2d 1296

(Pa.Super. 1989). “Additionally, the

record must be examined in the light most

favorable to the non-moving party,

accepting as true all well-pleaded facts

in their pleadings and giving that party

the benefit of all reasonable inferences

drawn therefrom." Id at 1298. Moreover,

the court's function in summary judgment

proceedings "is not to determine the

13a

APPENDIX A

facts, but only to determine ae. 6

material issue of fact exists." Id at

1298.

The Court strictly adheres to the

guiding Pennsylvania law regarding

Summary Judgment and after applying such

law to the facts in the case at hand, the

Court feels compelled to grant

Defendant's Motion. In regard to the

Substantive case law cited by the

parties, the Court finds the cases cited

by Plaintiff to be distinguishable from

the facts before it, while the cases

cited by Defendant are both relevant and

compelling.

In particular, the Court finds that

two of the cases cited by Defendant are

persuasive and relevant to the issue and

14a

APPENDIX A

facts in the case at hand. In Gaston v.

Flowers Transportation, 866 F.2d 816 (5th

Cir. 1989), the court denied recovery for

mental anguish to aie seaman allegedly

resulting from the horror of watching his

half-brother crushed to death between two

vessels. That court's determination was

made after it found that the plaintiff

was a bystander. Similarly, Plaintiff

Klineburger was a bystander who only

witnessed the alleged dangerous actions

of Charles Edwards on board Barge 71.

(See Klineburger Deposition pp. 29-33,

36-37)

In addition, in Kraus, et al. v.

onsoli ed i Cc ation, 723 F.

Supp. 1073 (E.D. Pa. 1989), the court

concluded that a plaintiff could not

15a

APPENDIX A

recover for job-stress related emotional

injuries unless the plaintiff stated a

Claim for intentional or negligent

infliction of emotional distress. That

court found that in order for a

Plaintiff to prevail in a claim for

intentional infliction of emotional

distress, a plaintiff would have to show

"outrageous" conduct by a defendant, and

for a plaintiff to prevail for the

negligent infliction of emotional

distress, that plaintiff must allege some

kind of specific physical contact. Since

Plaintiff Klineburger has done neither of

the above, he does not have a claim

against Defendant. (See Klineburger

Deposition p. 44)

Conversely, upon consideration of

16a

APPENDIX A

Plaintiff's Response to Defendant's

Motion for Summary Judgment, and

Plaintiff's Supplemental Brief in support

of their Answer, the Court found the

cited case law to be distinguishable from

the case at hand. In Haggerty v. L & L

Marine Services, Inc., 788 F.2d 315 (5th

Cir. 1986), the Plaintiff sought damages

for pain and suffering and mental anguish

in the form of Cancerphobia, which

according to Plaintiff, was the result of

the unseaworthiness of the vessel. The

Haggerty case is distinguishable from

Plaintiff's position because plaintiff

Haggerty was completely drenched with a

chemical that was known to have a

carcinogenic affect and, therefore, that

plaintiff's resulting cancerphobia, or

17a

APPENDIX A

fear of contacting cancer, could be

measured objectively. Such is not the

case for Plaintiff Klineburger whose

Psychiatric injuries remain

unsubstantiated by a psychiatrist and

unmeasurable because of Plaintiff's

history of mental distress. (See

Attending Physician Statement of

Disability, Dr. Wolgomat; Supplementary

Proof of Law, Application for Disability

Benefits; ATtending Physician's

Statement; Defendant's Memorandum in

Support of Motion for Summary judgment p.

4 4, and Klineburger Deposition pp. 45,

56-58.)

The Court also finds distinguishable

Vv Wo s

Inc., 606 F.Supp. 656 (S.D.N.Y. 1985),

18a

APPENDIX A

because plaintiff Salerno's emotional

injury was’ substantiated by her

miscarriage approximately 24 hours after

her plane ride aboard defendant's

eirerett. Whereas, Plaintiff

Klineburger's condition was never

substantiated by any impact. (See

Klineburger Deposition pp. 36-37 wherein

Plaintiff states that Edwards never

personally threatened Plaintiff.)

For the above reasons, the Court

grants Defendant's Motion for Summary

Judgment against Plaintiff Klineburger

and in favor of Defendants Maritrans,

Maritrans Operating Partners L.P. and

Maritrans G.P., Incorporation.

BY THE COURT:

/s/_ G.D. COHEN

G.D. COHEN

19a

APPENDIX B - OPINION OF THE SUPERIOR

COURT OF PENNSYLVANIA

SUPERIOR COURT OF PENNSYLVANIA

NO. 1389 PHILADELPHIA, 1990

JOSEPH R. KLINEBURGER,

Appellant

Vs.

MARITRANS, MARITRANS OPERATING

PARTNERS L.P. and MARITRANS G.P.,

INC.

Appeal from Order of the Court of Common

Pleas, Civil Division, of Philadelphia

County, No. 1067 May Term, 1989.

BEFORE: WIEAND, KELLY and CERCONE, JJ.

OPINION BY WIEAND, J.: FILED MAY 22, 1991

The issue in this appeal is whether

a ship's captain can recover under

general principles of admiralty law or

under the Jones Act, 46 U.S.C. §688, for

Physical or emotional manifestations of

work related stress. The trial court

held that there could be no such recovery

20a

APPENDIX B

and entered summary judgment in favor of

the defendant ship owner. After careful

review, we affirn.

In July, 1986, Joseph R.

Klineburger, an employee of Maritrans

with sixteen years experience, was

serving as captain of TAnker Barge 71,

which had been engaged to transport a

cargo of molten asphalt from Philadelphia

to Providence, Rhode Island. Charles

Edwards, who had recently been hired by

Maritrans, was assigned to the vessel as

a member of the crew. Klineburger has

alleged that Edwards, from the beginning,

displayed dangerous, aberrant behavior

while aboard ship. Thus, he allegedly

(1) bragged about his ability to kill and

about having killed while serving in

2la

APPENDIX B

Vietnam; (2) played with fire by blowing

flame at another seaman aboard ship after

the ship had been loaded with fuel and

cargo; and, finally, (3) jumped overboard

and swam ashore while the ship was en

route to Rhode Island. Between July 1986

and December, 1986, Edwards was not

replaced; and, therefore, Klineburger and

other members of the crew were required

to stand more frequent watches.

Kl ineburger contended that because of

these events he suffered a chronic and

debilitating anxiety and, because of the

emotional/psychiatric injury which he

Sustained, became disabled from further

employment. His condition was diagnosed

by his physician, on the application for

long term disability benefits, as

22a

APPENDIX B

depression and anxiety, together with an

incidentally discovered hypertension.

Appellant, in depositions, said that he

had suffered "emotional strain and

stress." He attributed it to stress

caused by Edwards' brief stay aboard

Ship. His physicians, on the other hand,

attributed his condition to "no specific

incident" but to life threatening

experiences as a ship's captain.

In reviewing the grant of summary

judgment, we are guided by the law set

forth in Austin J. Richards, Inc. vy.

McClafferty, 371 Pa.Super. 269, 538 A.2da

11 (1988), allocatur denied, 520 Pa. 570,

549 A.2d 131 (1988), as follows:

A motion for summary judgment

may properly be granted only

"if the pleadings,

23a

APPENDIX B

interrogatories, and admissions

on file, together with

affidavits, if any, show that

there is no genuine issue as to

any material fact and that the

moving party is entitled to a

judgment as a matter of law."

Pa.R.C.P. 1035(b). See also:

Williams v. Pilgrim Life

Insurance Co., 306 Pa.Super.

170, 172, 452 A.2a 269, 270

(1982). In passing upon a

motion for summary judgment,

the court must examine the

record in the light most

favorable to the nonmoving

party. ocono inte Lona

Raceway, Inc, Vv. Pocono

Produce, Inc., 503 Pa. 80, 82-

83, 468 A.2d 468, 470 (1983);

Zimmerman v. Zimmerman, 322

Pa.Super. 121, 124-125, 469

A.2d 212, 213 (1983); Wilk v.

Haus, 313 Pa. Super. 479, 482,

460 A.2d 288, 289-290 (1983).

It is not part of the court's

function to decide issues of

fact but solely to determine

whether there is an issue of

fact to be tried. Wilk v.

Haus, supra, 313 Pa. Superior

Ct. at 482, 460 A.2da at 290;

Tom Morello Construction Co. v.

Bridgeport Federal Savings &

Loan Association, 280

Pa.Super.

24a

APPENDIX B

329, 334, 421 A.2ada 747, 750

(1980). Any doubt must be

resolved against the moving

party. Chorba_ v. Davlisa

Gee 303

Pa.Super. 497, 500, 450 A.2da

36, 38 (1982); First

Pennsylvania Bank, N.A. vy.

Triester, 251 Pa.Super. 372,

378, 380 A.2da 826, 829 (1977).

Id. at 273-274, 538 A.2d at 13, quoting

Thorsen v. Iron and Glass Bank, 328

Pa.Super. 135, 140-141, 476 A.2a 928,

930-931 (1984).

In the instant case, the injuries

alleged by appellant occurred because of

maritime activity occurring in navigable

waters. Although the present action has

been brought in a state court, liability

must be determined according to federal,

maritime law. 70 Am.Jur. 2d Shipping

§447 (1987), citing Kermarec v. Compagnie

25a

APPENDIX B

Gene sat ti » 358 U.S. 625,

628, 79 8.¢ct. 406, 408, 3 L.Ed. 2a 550,

5953 (1959), overruled On other grounds,

Maragne v. States Marine Lines. Inc., 398

V.8. 375, 90 &.Ct. 1772, 26 L.Ed. 2d 339

(1970); Sistrunk v. Circle Bar Drilling

Co., 770 F.2d 455, 458 n.3 (Stu Cir.

1985), cert. denied, 475 U.S. 1019, 106

S.Ct. 1205, 89 L.Ed. 2d 318 (1986).

Under federal law, a ship owner is

strictly liable for failing to furnish a

Seaworthy ship. Liability for failing to

provide a seaworthy ship arises

independent of any duty to exercise

reasonable care. See: Seas Shipping Co.

Vv. Sieracki, 328 U.S. 85, 94-95, 66 S.Ct.

872, 877-878, 90 L.Ed. 1099, 1106

(1946); Mahnick v. Southern S.S. Co., 321

U.S. 96, 64 S.Ct. 455, 88 L.Ed. 561

(1944). See also: Miles, Admx. v. Apex

Marine Corp., 498 U.S. , : 22

S.Ct. 317, 322, 112 L.Ed. 2a 275, 286, 59

U.S.L.W. 4001, 4003 (1990). Appellant

26a

APPENDIX B

contends that the ship owner's employment

Of Edwards and Subsequent failure to

replace him rendered the barge

unseaworthy,. Under this doctrine,

however, recovery by a seaman generally

is limited to, "past and prospective loss

of earnings, medical expenses, physical

injuries and pain and suffering." Kiffe

Vv. Neches-Gulf Marine, Inc., 709 F.Supp.

743, 745 (E.D. Tex. 1989), citing Sosa v.

M/V_ Lago Isabal, 736 F.2d 1028, 1034 (5th

Cir. 1984). See also: Gaston v. Flowers

Transportation, 866 F.2d 816, 821 (5th

Cir. 1989); Bartholomew v. Universel

Tankships, Inc., 279 F.2d 911, 916 (2d

Cir. 1960). Recovery for purely

mental/emotional injury because of an

unseaworthy vessel has generally been

denied.

27a

APPENDIX B

The Jones Act makes available to

seamen injured in the course of their

employment a right of recovery for

injuries resulting from the ship owner's

negligence.! The Act "establishes a

1 The Jones Act provides, in

relevant part, as follows:

Any seaman who shall suffer personal

injury in the course of his employment

may, at his election, maintain an action

for damages at law, with the right of

trial by jury, and in such action all

statutes of the United States modifying

or extending the common-law right or

remedy in cases of personal injury to

railway employees shall QPPly . . « «

46 U.S.C. §688(a) (1986).

FELA provides, in relevant part, as

follows:

Every common carrier by railroad

while engaging in commerce... shall be

liable in damages to any person suffering

injury while he is employed by such

carrier in such commerce .. . fcr 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

28a

APPENDIX B

uniform system of tort law parallel to

that available to employees of interstate

railway carriers under [the Federal

Employers Liability Act (FELA), 45 U.S.C.

§ 51)." See: Mi ™ - ex Marine

Corp., supra at —__., ill S.Ct. at 321,

112 L.Ed. 2d at 285, 59 U.S.L.W. at 4004.