Appeal from a judgment of the United States District Court for the District of Vermont (Billings, J.), entered after a bench trial, finding in favor of defendant Canadian National Railway in an action brought under the Federal Employers Liability Act.
Before: VAN GRAAFEILAND, NEWMAN and MINER, Circuit Judges.
Eileen Bailey, administratrix of the estate of Jeffrey Bailey ("Bailey"), appeals from a judgment of the United States District Court for the District of Vermont (Billings, J.) finding in favor of defendant Canadian National Railway ("CNR") in an action brought under the Federal Employers Liability Act ("FELA"), 45 U.S.C. §§ 51-60 (1982). Appellant also challenges an earlier ruling of the district court that, pursuant to the Foreign Sovereign Immunities Act ("FSIA"), 28 U.S.C. §§ 1602-1611 (1982), and 28 U.S.C. § 1330(a) (1982), struck her demand for a jury trial. See Bailey v. Grand Trunk Lines New England, 609 F. Supp. 48 (D. Vt. 1984). We affirm judge Billings' decision with respect to the jury trial issue, but vacate the judgment as to liability and remand for further proceedings.
On June 3, 1983, Bailey was operating a CNR railroad track brush cutter on a section of New Hampshire railroad track while his partner, Ronald Riendeau, drove in his truck on a highway that ran parallel to the track. Although a CNR regulation required that all operations involving track machines proceed with at least two men "working together," the employees' practice was to have one man operate the machine on the track while his partner traveled on the highway to "flag" him at the crossings. This system was employed despite the fact that portions of the track were not always visible from the highway.*fn1
The June 3rd work assignment called for Bailey and Riendeau to cover approximately fifty miles of track, from Berlin, New Hampshire to Island Pond, Vermont. By the time Riendeau arrived at the crossing in West Milan, New Hampshire, he noticed that Bailey already had been flagged across the intersection. Riendeau thus drove to the second crossing in Stark, New Hampshire, where he waited a short time for Bailey to arrive. Believing that Bailey again had preceded him, Riendeau drove ahead to the third crossing in Groveton, New Hampshire. From Groveton, Riendeau returned along the highway to West Milan to look for Bailey. Since he could not see Bailey from the highway, he continued on to Island Pond. Arriving there at approximately 10:30 A.M., Riendeau attempted several times to contact Bailey by radio. Bailey, however, had derailed at approximately 9:30 A.M., and therefore was unable to respond. It is significant to note that although Bailey's derailment occurred at a point where the track was not visible from the highway, there existed alongside that portion of the route a smaller road from which Riendeau's vision of the track would not have been obscured.
The evidence at trial established that railroad employees commenced a search for Bailey somewhere between 12:15 and 12:30 P.M., nearly three hours after the accident. A search party that had proceeded along the small road adjacent to the track discovered Bailey between the first and second crossing at approximately 12:45 P.M. It was not until 2:00 P.M., however, that the rescuers were able to extricate Bailey and transport him to the hospital. The "crush injury" that Bailey sustained during the approximately four and one-half hours he was pinned underneath the brush cutter resulted in his death four days later.
Eileen Bailey commenced suit against CNR under the FELA, claiming that the railroad was liable to Bailey's estate for negligently causing his death.*fn2 Although jury trial was requested, CNR moved to strike the jury demand, arguing that the FSIA precluded a trial by jury against an instrumentality of a foreign state. See 28 U.S.C. §§ 1330, 1603. Judge Billings granted CNR's motion, 609 F. Supp. at 52, and the case then was tried to the court. In an unreported decision dated June 28, 1985, Judge Billings rejected each of appellant's claims and found that CNR had not been negligent.
For the reasons set forth below, we affirm the district court's order denying appellant a jury trial, vacate the court's finding that CNR was not negligent, and remand for further proceedings.
In striking plaintiff's demand for a jury, the district court properly determined that the FSIA provides the exclusive source of federal jurisdiction in actions against foreign sovereigns or their instrumentalities. See 28 U.S.C. §§ 1330(a), 1602-1611; Ruggiero v. Compania Peruana de Vapores, 639 F.2d 872 (2d Cir. 1981). Since that statutory scheme expressly foreclosed the right to a jury trial, we need only determine whether Judge Billings correctly found CNR to be an instrumentality of Canada.
The FSIA defines an "agency or instrumentality of a foreign state" as any entity
(1) which is a separate legal person, corporate or otherwise, and
(2) which is an organ of a foreign state or political subdivision thereof, or a majority of whose shares or other ownership interest is owned by a foreign state or political subdivision thereof, and
(3) which is neither a citizen of a State of the United States as defined in section 1332(c) and (d) of this title, nor created under the laws of any third country.
28 U.S.C. § 1603(b). Appellant concedes that CNR satisfies the first and second elements of section 1603(b), but maintains that CNR is a citizen of a state of the United States, and therefore not an ...