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Straight
Track #83
| Does The FELA Apply To U.S. Citizens Working In Canada?
Robert Drummond
Hoey & Farina Attorney
1-888-425-1212
With the merger/acquisition of various American and Canadian carriers, your union representatives have expressed concern whether a U.S. railroader working in Canada is covered by the
FELA.
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Take, for example, the following hypothetical. Joe and Jane Railroaders, both U.S. citizens working for an American carrier begin their shift in Detroit, Michigan. Their destination is Windsor, Ontario. After crossing the international line, they are involved in a collision with another train, operating in Canada, by another U.S. crew and carrier. Are these railroaders covered by the
FELA?
The legal question is whether the FELA has extraterritorial effect beyond the borders of the United States. Notwithstanding the broad remedial purpose of this historic piece of legislation, and acknowledgement of this purpose repeatedly by the U.S. Supreme Court, the same court has concluded that the FELA does not cover U.S. citizens working in Canada. In 1925. the
U.S. Supreme Court decided New York Central Railroad Co. v. Chisholm 268 U.S. 29.
The New York Central operated a passenger train between Malone, New York and Montreal, Canada. Railroader
McTier, a U.S. citizen, suffered fatal injuries in the service of the carrier 30 miles north of the international boundary. In response to the question of whether he was covered by the
FELA, the Court stated that “legislation is presumptively territorial and confined to limits over which the law making power has jurisdiction.” In summary, the Court ruled that the FELA did not apply to injuries which occur outside the territorial limits of the
United States.
If the FELA does not apply, what remedy does an injured railroader have? This issue was addressed in
Rogers v. Conrail 948 F2d 858 (1991). Rogers, a U.S. citizen and New York resident worked for Conrail as a freight conductor. He worked between Conrail’s Massena New York, Yard and Quebec, Canada. He sustained injury when the train was in Quebec. He filed an action under the
FELA, and in the alternative, under the New York Workers' Compensation Law. Conrail moved to dismiss both actions. Conrail took the ironic position that the FELA applied in Canada, in an effort to defeat all claims. As the Court of Appeals observed:
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. (Rogers at 862)
The Rogers court, following the decision in Chisholm, ruled that the FELA did not apply because the injury occurred in Canada. The Court, however, rejected Conrail’s position that no remedy was available, and allowed Rogers' claim to proceed under the New York Workers’ Compensation Law. Thus, the State law was in effect held to apply extraterritorially where the Federal Law did not.
See Endnote.
Let us go back to the original example of two U.S. train crews operating for American carriers involved in a collision on Canadian soil. If
Crew A originated their trip in Michigan and Crew B started out in New York, what law would apply. Based on the
Rogers decision, it would appear that Crew A would be covered under Michigan's Workers’ Compensation and
Crew B under New York's Workers’ Compensation. This is indeed an unusual result in an area of legislation where the courts have emphasized that the rules which apply are to be uniform. Let’s further assume that both crews work for the same carrier. Now the carrier will be exposed to two different sets of laws, and two potentially different remedies. One purpose of federal legislation in the area of railroad safety was to promote uniform standards for safety and a uniform remedy. It appears that this goal will continue to be frustrated in light of recent mergers and acquisitions.
It would appear, and this will be the focus of another article, that U.S. unions could address this disparity in their labor agreements. Nothing in the Railway Labor Act should prevent the parties from choosing the law that would apply in the event that an accident occurs on foreign soil. In fact, achieving a uniform choice of law in this area might appeal to the carriers as well. In the meantime, it appears that an injury which occurs on foreign soil will at least be compensable under a State Workers’ Compensation Law.
Endnote:
1. Because Conrail had not purchased Workers' Compensation insurance, Rogers was allowed to bring an action in a court under New York law.
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