948 F.

2d 858
60 USLW 2339

Peter J. ROGERS and Karen Rogers, Plaintiffs-Appellees,

v.
CONSOLIDATED RAIL CORPORATION, DefendantAppellant.
No. 162, Docket 91-7440.

United States Court of Appeals,

Second Circuit.
Argued Sept. 11, 1991.
Decided Nov. 5, 1991.

Scott A. Barbour (McNamee, Lochner, Titus and Williams, P.C., Albany,

N.Y., of counsel), for defendant-appellant.
Ira M. Maurer (Elkind, Flynn & Maurer, P.C., New York City, of
counsel), for plaintiffs-appellees.
Before KEARSE, MINER and McLAUGHLIN, Circuit Judges.
McLAUGHLIN, Circuit Judge:

Consolidated Rail Corp. ("Conrail") appeals from an order of the United States
District Court for the Northern District of New York, Cholakis, Judge, denying
its motion for summary judgment dismissing plaintiffs' claims under New
York's Workers' Compensation Law ("WCL"). The district court adhered to its
prior ruling, which had denied Conrail's motion under Fed.R.Civ.P. 12(b)(1)
and (6) to dismiss the same claims.1 Conrail contends that state-law damage
claims for injuries sustained extraterritorially are preempted by the Federal
Employers' Liability Act ("FELA"), 45 U.S.C. 51 et seq. (1982). We disagree
and therefore affirm.

BACKGROUND
2

Plaintiff Peter Rogers, a New York resident, worked for defendant Conrail as a

freight conductor. He worked out of Conrail's Massena, New York facility. On

July 25, 1986, Rogers was travelling on a Conrail train from the Massena Yard
to Valleyfield, Quebec, Canada when he fell off the train just outside
Valleyfield, Quebec. Rogers sustained back injuries and he alleges that the fall
was caused by Conrail's failure to maintain safe working conditions and by its
negligent supervision of its trainmaster.
3

On September 23, 1986, the Rogers (husband and wife) filed their complaint in
the district court, asserting claims under both FELA and the WCL. Conrail
moved to dismiss the complaint for lack of subject matter jurisdiction and for
failure to state a claim upon which relief could be granted. Judge Cholakis
granted the motion with respect to the FELA claim, holding that the statute did
not provide a remedy for injuries sustained abroad. See 688 F.Supp. at 836
(citing Lauritzen v. Larsen, 345 U.S. 571, 581, 73 S.Ct. 921, 927-28, 97 L.Ed.
1254 (1952)). However, he denied the motion with respect to the Rogers'
claims under the WCL, rejecting Conrail's assertion that FELA preempted
them. After discovery was taken, Conrail renewed its objections in a summary
judgment motion,2 again arguing that FELA preempted the Rogers' state-law
claims.

Judge Cholakis denied Conrail's summary judgment motion. He certified

Conrail's interlocutory appeal pursuant to 28 U.S.C. 1292(b) and we granted
Conrail's petition for permission to appeal pursuant to Fed.R.App.P. 5(a).
Because we agree that FELA does not have extraterritorial effect and therefore
does not preempt state-law remedies for injuries sustained beyond United
States borders, we now affirm the district court's order.

DISCUSSION
5

The dispositive issue on appeal is narrow: does FELA preempt all state-law
claims by railway employees for injuries sustained extraterritorially? If so, then
a New York resident has no claim under the WCL even when, as here, FELA
affords no remedy. If not, then he may sue under the WCL.

We start from the proposition that "[p]re-emption of state law by federal statute
or regulation is not favored 'in the absence of persuasive reasons--either that the
nature of the regulated subject matter permits no other conclusion, or that the
Congress has unmistakably so ordained.' " Chicago & N.W. Transp. Co. v.
Kalo Brick & Tile Co., 450 U.S. 311, 317, 101 S.Ct. 1124, 1130, 67 L.Ed.2d
258 (1981) (quoting Florida Lime & Avocado Growers, Inc. v. Paul, 373 U.S.
132, 142, 83 S.Ct. 1210, 1217, 10 L.Ed.2d 248 (1963)). This presumption
against preemption is particularly apt when, as here, the state law said to be

preempted is within the states' traditional police powers. See Ray v. Atlantic
Richfield Co., 435 U.S. 151, 157, 98 S.Ct. 988, 994, 55 L.Ed.2d 179 (1978);
Aetna Life Ins. Co. v. Borges, 869 F.2d 142, 144 (2d Cir.), cert. denied, 493
U.S. 811, 110 S.Ct. 57, 107 L.Ed.2d 25 (1989).
7

Congress may preempt state law in several ways:

8
First,
in enacting the federal law, Congress may explicitly define the extent to which
it intends to preempt state law. Second, even in the absence of express pre-emptive
language, Congress may indicate an intent to occupy an entire field of regulation, in
which case the States must leave all regulatory activity in that area to the Federal
Government. Finally, if Congress has not displaced state regulation entirely, it may
nonetheless pre-empt state law to the extent that the state law actually conflicts with
federal law.
9

Michigan Canners & Freezers Ass'n, Inc. v. Agricultural Mktg. & Bargaining
Bd., 467 U.S. 461, 469, 104 S.Ct. 2518, 2522-23, 81 L.Ed.2d 399 (1984)
(citations omitted).

10

It is now well-settled that Congress explicitly directed that FELA wholly

preempt state-law remedies for railway employees injured in the course of
employment when any part of that employment furthers interstate commerce.
See New York Cent. R.R. Co. v. Winfield, 244 U.S. 147, 151-52, 37 S.Ct. 546,
548, 61 L.Ed. 1045 (1917); see also H.R.Rep. No. 1386, 60th Cong., 1st Sess. 3
(1908) (FELA "will supplant the numerous State statutes on the subject so far
as they relate to interstate commerce"). Thus, if FELA applies to the Rogers'
state-law claims, it preempts them. Our task, therefore, is to ascertain whether
FELA governs actions by railway employees injured beyond United States
borders. Because it is undisputed that FELA fails to provide a remedy for
injuries suffered outside the United States, see Lauritzen, 345 U.S. at 581, 73
S.Ct. at 927-28, a holding that the statute nevertheless preempts state-law
remedies would obviously leave the Rogers without any redress under United
States law. In short, we must determine whether Congress intended that
American railway employees injured extraterritorially should be denied relief
under our law.3

11

In this case of first impression the FELA statute itself is singularly

unenlightening. Supreme Court precedent is also sparse, although it is clear that
FELA does not itself provide a remedy for extraterritorial injuries. See New
York Cent. R.R. Co. v. Chisholm, 268 U.S. 29, 31, 45 S.Ct. 402, 402, 69 L.Ed.
828 (1925); Boak v. Consolidated Rail Corp., 850 F.2d 110, 111 (2d Cir.1988)
(per curiam). The cases, however, do not articulate whether this is so because

the statute simply does not apply extraterritorially or because Congress meant
FELA to apply beyond American borders but not to provide redress for injuries
sustained abroad. In choosing between these conflicting rationales, we must
decide "which choice is it the more likely that Congress would have made?"
Burnet v. Guggenheim, 288 U.S. 280, 285, 53 S.Ct. 369, 370-71, 77 L.Ed. 748
(1933) (Cardozo, J.).
12

When divining congressional intent, we are mindful of Justice Frankfurter's

counsel that "[l]egislation has an aim; it seeks to obviate some mischief, to
supply an inadequacy, to effect a change of policy, to formulate a plan of
government." Frankfurter, Some Reflections on the Reading of Statutes, 47
Colum.L.Rev. 527, 538-39 (1947). An examination of FELA's legislative
genesis is informative. See FDIC v. Tremaine, 133 F.2d 827, 830 (2d Cir.1943)
(L. Hand, J.) ("[t]here is no surer guide in the interpretation of a statute than its
purpose when that is sufficiently disclosed").

13

The explosive development of a national railway system in the nineteenth

century was one of the cornerstones of this country's economic revolution. See
generally G. Kalko, Railroads and Regulation: 1877-1916, at 1-5 (1965). The
railroad's integral role in industrialization, however, came at great expense;
thousands of railway workers were killed or maimed toiling on these machines
of modernization. See Johnson v. Southern Pac. Co., 196 U.S. 1, 19-20, 25
S.Ct. 158, 162-63, 49 L.Ed. 363 (1904); Griffith, The Vindication of a National
Public Policy Under [FELA], 18 Law & Contemp.Probs. 160, 162-66 (1953);
see also S.Rep. No. 460, 60th Cong., 1st Sess. 3 (1908) ("Everybody
understands that our railway workmen do their work in the constant presence of
danger, where a single misstep is often fatal."). In 1889, President Harrison
bemoaned this situation, telling Congress " '[i]t is a reproach to our civilization
that any class of American workmen, should, in the pursuit of a necessary and
useful vocation, be subjected to a peril of life and limb as great as that of a
soldier in time of war.' " Griffith, supra, at 162 (quoting Johnson, 196 U.S. at
19, 25 S.Ct. at 162).

14

That railway workers were so often subject to death and disfigurement was only
part of this tragic situation. Those who survived debilitating injuries were often
denied redress in our nation's courts because of hoary common law rules, like
the fellow-servant doctrine, ill-suited to the plight of railway laborers. See
Winfield, 244 U.S. at 164, 37 S.Ct. at 553-54 (Brandeis, J., dissenting); S.Rep.
No. 661, 76th Cong., 1st Sess. 4 (1939) ("such simple doctrines do not apply
equitably under the infinite complexities of modern industrial practices").

15

Against this historical backdrop, Congress began to regulate railway safety. In

1893, it enacted the Federal Safety Appliance Act, requiring various safety
devices on all railroad cars. See 27 Stat. 531 (1893) (codified as amended at 45
U.S.C. 1-16); see also Lilly v. Grand Trunk W. R.R. Co., 317 U.S. 481, 486,
63 S.Ct. 347, 351, 87 L.Ed. 411 (1943) (Safety Appliance Act "is to be liberally
construed in the light of its prime purpose, the protection of employees and
others by requiring the use of safe equipment"). Two years later, a version of
FELA was introduced in Congress. The bill ultimately elicited the support of
President Roosevelt and became the original Federal Employers' Liability Act
of 1906. See 34 Stat. 232 (1906); Griffith, supra, at 166. The statute's
objectives were plain:
16

The passage of the law was urged upon the strongest and highest considerations
of justice and promotion of the public welfare. It was largely influenced by the
strong message of President Roosevelt to the Sixtieth Congress in December,
1907, in which the basis of the legislation was clearly and strongly placed upon
the ground of justice to the railroad workmen of this country....

17

S.Rep. No. 432, 61st Cong., 2d Sess., reprinted in 45 Cong. Rec. 4040, 4041
(Mar. 31, 1910). FELA thus modified or eliminated the common-law defenses
that had precluded railway employees from recovering from their employers for
injuries sustained in the course of their employment.

18

The original act was struck down in 1908 by a Supreme Court notoriously
hostile to economic regulation. See Howard v. Illinois Cent. R.R. Co., 207 U.S.
463, 504, 28 S.Ct. 141, 147-48, 52 L.Ed. 297 (1908). Congress responded by
passing a constitutional version of the law three months later. See 35 Stat. 65
(1908). The Senate Committee on Education and Labor considered reenactment
of FELA "a wise step toward the establishment of justice and fair-dealing
among men." S.Rep. No. 460, 60th Cong., 1st Sess. 4 (1908). Congress
declared that its

19
purpose
... in the passage of this act was to extend further protection to employees.
This was its manifest purpose, as is apparent from a consideration of the
circumstances of its enactment. It is manifest from a consideration of the reports,
both of the Senate and House committees, when the measure was pending before
those bodies prior to its enactment, that the purpose of the statute was to extend and
enlarge the remedy provided by law to employees engaged in interstate commerce in
cases of death or injury to such employees while engaged in such service. No
purpose or intent on the part of Congress can be found to limit or to take away from
such an employee any right theretofore existing by which such employees were
entitled to a more extended remedy than that conferred upon them by the act.

20

S.Rep. No. 432, 61st Cong., 2d Sess., reprinted in 45 Cong.Rec. 4040, 4044
(Mar. 31, 1910) (amending FELA).

21

Proving once again that cumbersome rules of procedure will bedevil even the
most enlightened substantive innovations, the new FELA rights were
immediately stymied by the ancient federal venue statutes which generally
required an injured employee to sue his employer in the state where it was
incorporated. See Griffith, supra, at 167. Congress responded by providing a
more liberal venue provision for FELA actions. See 36 Stat. 291 (1910). In
doing so, Congress strongly reaffirmed its intent that railway workers be
compensated for injuries sustained in their employment:

22

It was the intention of Congress in the enactment of this law originally and it
may be presumed to be the intention of the present Congress to shift the burden
of the loss resulting from these casualties from "those least able to bear it" and
place it upon those who can ... "measurably control their causes."

23

S.Rep. No. 432, 61st Cong., 2d Sess., reprinted in 45 Cong.Rec. 4040, 4041
(Mar. 31, 1910) (quoting St. Louis, I.M. & S. Ry. Co. v. Taylor, 210 U.S. 281,
296, 28 S.Ct. 616, 621, 52 L.Ed. 1061 (1908)).

24

In the ensuing years, FELA "ran the rapids of streams of restrictive

interpretations and of constructions placed upon its provisions by the courts
which reimposed many of the old common-law defenses that, in the original
Act, it was the intention of Congress to abolish." Griffith, supra, at 168. Once
again, Congress remedied the situation, forcefully and dramatically amending
the statute to leave no doubt about its broad scope and remedial spirit. See 53
Stat. 1404 (1939); Wilkerson v. McCarthy, 336 U.S. 53, 68-69, 69 S.Ct. 413,
420-21, 93 L.Ed. 497 (1949) (Douglas, J., concurring); see also Atchison,
Topeka & Santa Fe Ry. Co. v. Buell, 480 U.S. 557, 562, 107 S.Ct. 1410, 141314, 94 L.Ed.2d 563 (1987) ("We have recognized generally that the FELA is a
broad remedial statute, and have adopted a 'standard of liberal construction in
order to accomplish [Congress'] objects.' ") (quoting Urie v. Thompson, 337
U.S. 163, 180, 69 S.Ct. 1018, 1029-30, 93 L.Ed. 1282 (1949)); Kernan v.
American Dredging Co., 355 U.S. 426, 432, 78 S.Ct. 394, 398, 2 L.Ed.2d 382
(1958) ("it is clear that the general congressional intent [in FELA and the Jones
Act] was to provide liberal recovery for injured workers"); Urie, 337 U.S. at
181-82, 69 S.Ct. at 1030-31 (construing FELA according to its "remedial and
humanitarian purpose, and the constant and established course of liberal
construction of the Act followed by this Court"); Jamison v. Encarnacion, 281
U.S. 635, 640, 50 S.Ct. 440, 442, 74 L.Ed. 1082 (1930) (FELA "is to be

construed liberally to fulfill the purposes for which it was enacted"); Eggert v.
Norfolk & W. Ry. Co., 538 F.2d 509, 511 (2d Cir.1976) ("Congress intended
the Act to be remedial legislation").
25

This rich history is enough to convince us of Congress' unyielding insistence

that FELA be liberally construed to facilitate recovery. Viewed through this
prism, Conrail's contention that FELA applies extraterritorially, only so that it
might altogether deprive injured employees of a remedy under American law, is
startling. Indeed, Conrail has not cited us to any expression of congressional
intent which would support this grim conclusion.4 We reject it, in the belief that
Congress intended FELA to apply only to accidents occurring within the United
States.

26

Our territorial view of FELA's scope accords with the sweeping language, if not
the holdings of Chisholm and its progeny. See, e.g., Lauritzen v. Larsen, 345
U.S. 571, 581, 73 S.Ct. 921, 927-28, 97 L.Ed. 1254 (1953) ("we have held
[FELA] not applicable to an American citizen's injury sustained in Canada")
(dictum); Boak, 850 F.2d at 111 ("FELA does not have extraterritorial effect");
Cox v. Chesapeake Ohio R.R. Co., 494 F.2d 349, 350 (6th Cir.) (FELA "does
not apply to railroad employees injured outside the territorial United States"),
cert. denied, 417 U.S. 977, 94 S.Ct. 3184, 41 L.Ed.2d 1146 (1974); Cruz v.
Chesapeake Shipping Inc., 738 F.Supp. 809, 820 (D.Del.1990) ("The FELA has
no extraterritorial effect."). In sum, we hold that FELA does not apply
extraterritorially and therefore does not preempt state-law remedies for railway
employees injured abroad.

27

We recognize that this conclusion makes Conrail amenable to the Rogers'

action under section 11 of the WCL, which is admittedly punitive in nature.
That section permits an injured employee to bring a plenary tort suit against his
employer when that employer has failed to secure workers' compensation
insurance, as required by the WCL. Railroads have known since 1925, when
Chisholm was decided, that FELA afforded no remedy to a United States
employee injured abroad. Yet, Conrail disregarded the mandate of New York's
WCL, apparently on the assumption that United States courts would relegate
resident employees injured abroad to seek recovery under foreign law. This
reliance clearly entailed the risk that Conrail's construction of FELA might be
erroneous. Conrail, not the Rogers, must now suffer the consequences of this
mistaken assumption. Railway employers are now on notice that FELA does
not absolve them of their state-mandated obligation to compensate employees
who are injured abroad.

28

Conrail's remaining arguments need not detain us. First, Conrail contends that

WCL Section 113, which provides that parties otherwise subject to federal law
may elect the benefits of the WCL, requires that the Rogers obtain Conrail's
consent to be governed by the WCL, and no such consent has been obtained.
Having concluded that FELA does not apply extraterritorially, however,
Section 113 is clearly inapposite, and no consent is needed.
29

Finally, Conrail maintains that even if FELA does not preempt state law, New
York, in this case, would choose to apply the law of Quebec, Canada, where
Roger's injury occurred. This contention is meritless. New York courts apply
the law of the jurisdiction having the most significant contacts with the action.
See Schultz v. Boy Scouts of Am., Inc., 65 N.Y.2d 189, 196, 491 N.Y.S.2d 90,
94, 480 N.E.2d 679, 683 (1985); see also Nashko v. Standard Water Proofing
Co., 4 N.Y.2d 199, 201, 173 N.Y.S.2d 565, 567, 149 N.E.2d 859, 861 (1958)
(WCL applies if employment located in New York). Although the accident
occurred in Canada, Rogers resides in New York, worked out of a Conrail
facility in New York, and, except for his initial hospitalization, has been treated
for his injuries in New York. Thus, New York has the dominant interest in this
controversy and its law should apply.5 The applicable law would then be the
New York WCL. See, e.g., Lewis v. Knappen Tippetts Abbett Eng'g Co., 304
N.Y. 461, 465-66, 108 N.E.2d 609 (1952) (affirming WCL award to widow of
employee killed in Israel); McMains v. Trans World Airlines, Inc., 18 A.D.2d
956, 957, 237 N.Y.S.2d 812, 814 (3d Dept.) (upholding WCL award to widow
of pilot working out of Hamburg and killed in Brazil), appeal denied, 13 N.Y.2d
593, 240 N.Y.S.2d 1025, 190 N.E.2d 905 (1963).

CONCLUSION
30

Accordingly, the district court's decision denying Conrail's summary judgment

motion is affirmed.

See Rogers v. Consolidated Rail Corp., 688 F.Supp. 835 (N.D.N.Y.1988)

Although the parties disagree on whether FELA applies extraterritorially, there

is no disagreement that even if FELA does apply, it provides no remedy in this
case. Accordingly, Rogers has not sought to appeal the district court's dismissal
of his FELA claim for failure to provide a remedy, and that distinct issue is not
before us

Conrail maintains that the Rogers must look exclusively to the law of Quebec
for whatever relief may be available. If FELA preempts New York law in this
context, Conrail is correct

Conrail's counsel conceded as much in oral argument:

Judge Miner: "What is there in congressional history or in the statute that shows
the intention of Congress to leave an American citizen without a remedy, under
American law?"
Conrail's Counsel: "There is nothing expressly within the intent of Congress
about that particular issue."

For a more thorough examination of this issue, see Judge Cholakis' earlier
opinion denying Conrail's motion to dismiss the complaint, 688 F.Supp. 835,
839-41 (N.D.N.Y.1988)