January 14, 1993
                  UNITED STATES COURT OF APPEALS
                      FOR THE FIRST CIRCUIT
                                           

No. 92-1473

                  THEODORE M. ELLENWOOD, ET AL.,

                      Plaintiffs, Appellees,

                                v.

                       EXXON SHIPPING CO.,

                      Defendant, Appellant.

                                           

                         STATE OF MAINE,

                           Intervenor.

                                           

No. 92-1474

                  THEODORE M. ELLENWOOD, ET AL.,

                     Plaintiffs, Appellants,

                                v.

                       EXXON SHIPPING CO.,

                       Defendant, Appellee.
                                           

                         STATE OF MAINE,

                           Intervenor.

                                           

          APPEALS FROM THE UNITED STATES DISTRICT COURT

                    FOR THE DISTRICT OF MAINE

            [Hon. D. Brock Horny, U.S. District Judge]
                                                     

                                           

                              Before

                       Breyer, Chief Judge,
                                          
                  Coffin, Senior Circuit Judge,
                                              
                     and Cyr, Circuit Judge. 
                                           

                                           

  Peter  Bennett with  whom  Daniel W.  Bates was  on brief  for the
                                             
Ellenwoods.
  Thomas  D. Warren,  Deputy Attorney General, with  whom Michael E.
                                                                    
Carpenter, Attorney General, was on brief for the State of Maine.
       
  Robert  M. Hayes  with whom  Charles  G.  Bakaly, Jr.,  Richard G.
                                                                    
Moon, and Linda D. McGill were on brief for Exxon Shipping Company.
                       

                                           

                                           

     COFFIN,  Senior  Circuit Judge.    Shortly  after the  Exxon
                                                                 

Valdez struck a  reef off  the Alaskan coast  in 1989,  defendant
      

Exxon Shipping Company adopted a new policy barring  any employee

who had  ever participated  in an alcohol  rehabilitation program

from  holding designated jobs  within the  company.   Pursuant to

this policy, plaintiff Theodore  Ellenwood, who had no connection

to  the Valdez incident, was  removed from his  position as chief
              

engineer  of  another Exxon  oil  tanker,  the Exxon  Wilmington.
                                                                

Ellenwood   voluntarily  had   entered,   and  successfully   had

completed,  a  month-long alcohol  rehabilitation program  a year

before  the Valdez  accident.   Despite  his  concerns about  his
                  

drinking,  Ellenwood never  had  had an  on-the-job problem  with

alcohol.   A  psychiatrist who  examined Ellenwood  in connection

with  this case concluded,  in fact,  that he  had never  been an

alcoholic.  See Tr. Vol. V, at 133.
               

     Relying primarily  on the company's previous  written policy

that "[n]o employees with alcoholism will have their job security

or  future opportunities jeopardized due to a request for help or

involvement in  a rehabilitation effort," Ellenwood  and his wife

brought suit against  Exxon alleging tort and  contract claims as

well as violations of  state statutes prohibiting  discrimination

against  the  handicapped.1    Ellenwood  ultimately  received  a

                    

     1 The complaint  set forth the  following causes of  action:
breach of  contract (Count  I); breach  of a  duty of good  faith
arising out of Exxon's use of confidential information concerning
Ellenwood's alcohol treatment as a basis  for removing him (Count
II); estoppel arising out of Exxon's representations and promises
(Count III); wrongful discharge in violation of the public policy
promoting  responsible  treatment   of  alcoholism  (Count   IV);

                               -3-

judgment  for $677,648  on his  contract and  promissory estoppel

causes of action.

     In  these appeals, both sides contend,  inter alia, that the
                                                       

district court  committed legal error in  defining the actionable

counts.  Ellenwood claims the judge eliminated too many claims on

various legal grounds, depriving  him of additional relief, while

Exxon  claims  that  the court  allowed  too  many  counts to  be

tried.2   We affirm most  of the  court's rulings.   We conclude,

however,  that the  district court  overestimated the  preemptive

effects of admiralty law  and the Rehabilitation Act of  1973, 29

U.S.C.     701-796, and, accordingly, we must remand for trial on

Ellenwood's state statutory claims of handicap discrimination.3

                    

discrimination against the handicapped  contrary to various state
laws (Count V); misrepresentation over the career consequences of
seeking alcohol  treatment (Count VI); intentional  and negligent
infliction  of emotional  distress on  both Ellenwoods  in ending
Ellenwood's  career  and  disseminating confidential  information
concerning  his condition  (Counts VII  and VIII);  defamation in
removing  Ellenwood from  his position  as chief  engineer (Count
IX);  invasion of privacy in  the manner in  which Exxon obtained
the  information about  Ellenwood's  treatment and  disclosed  it
(Count  X); invasion of privacy  in placing Ellenwood  in a false
light (Count XI); invasion of privacy in publicizing confidential
information  (Count  XII); Mrs.  Ellenwood's  loss  of consortium
(Count XIII); and punitive damages (Count XIV).

     2  This  court  granted   the  State  of  Maine  provisional
permission to intervene on the issue of whether Ellenwood's claim
based on  the Maine Human Rights Act, 2A Me. Rev. Stat. Ann. tit.
5,    4571-72 (Supp. 1992), is preempted by federal law.

     3 The  complaint referred to  statutes in Maine,  New Jersey
and Texas,  and we offer  no view as  to the applicable law.   We
note, however, that the district court applied Texas law to Count
XII  of the complaint, which alleged an invasion of privacy.  See
                                                                 
Memorandum of Decision, Oct. 28, 1991. 

                               -4-

            I. Preemption and the Rehabilitation Act4
                                                    

A. Background
             

     Section 503 of the  Rehabilitation Act of 1973, 29  U.S.C.  

793, requires any  contract with the federal government in excess

of  $2,500   to  include  a  provision   obligating  the  federal

contractor to "take affirmative  action to employ and advance  in

employment qualified  individuals with  handicaps."  29  U.S.C.  

793(a).  Any handicapped individual who believes a contractor has

failed  to comply with this  provision may file  a complaint with

the Department of Labor, which must conduct an investigation  and

take  appropriate  action.   29  U.S.C.    793(b).    Regulations

promulgated pursuant  to   503 specify  a detailed administrative

enforcement mechanism for its breach.  See 41 C.F.R.    60-741.1-
                                          

741.32  (1991).   The  Department's  Office  of Federal  Contract

Compliance Programs  (OFCCP) is  empowered, for example,  to seek

injunctive relief in  court, terminate or  cancel a contract,  or

bar  a contractor from receiving  future contracts.   41 C.F.R.  

60-741.28(b)-(e)  (1991).  It also may seek such remedies as back

pay and reinstatement for affected employees.  See Dep't of Labor
                                                                 

v.  Texas Indus.,  Inc., 47 Fair  Empl. Prac.  Cas. (BNA)  18, 28
                       

(Dep't Labor 1988).  See Howard v. Uniroyal, Inc., 719 F.2d 1552,
                                                 

1559 (11th Cir. 1983) (detailing enforcement procedures).

     In  a motion for summary judgment, Exxon, which is a federal

contractor,  argued   that     503  preempts   virtually  all  of

                    

     4 Our  review of the district  court's preemption decisions,
which were rulings of law, is plenary.

                               -5-

Ellenwood's  state   law  claims,5  and  that   Ellenwood's  only

recourse on matters related to his alcohol treatment is the claim

he has filed  with the OFCCP.   The  district court rejected this

contention,  finding  no  evidence  that  Congress  intended  the

provision  to eliminate  conventional  state law  claims such  as

breach of  contract, misrepresentation, defamation  or infliction

of  emotional  distress,  because these  claims  "are  in no  way

related to the federal Rehabilitation Act, any affirmative action

clause  in a  government contract,  or handicap  discrimination."

See Memorandum of Decision, Oct. 15, 1991, at 3.   The court also
   

ruled, however, that   503 did preempt  Count V's direct claim of

discrimination  on the basis of handicap  in violation of various

state statutes, and  Count IV's common law claim that Ellenwood's

discharge   violated  a   public  policy   promoting  responsible

treatment of alcoholism.

     Neither party  is satisfied with this  Solomonic division of

the claims.   Accordingly, on  appeal, we are  asked to  consider

both Ellenwood's  claim that the  district court erred  in ruling

that    503  preempts  Counts  IV  and  V  and  Exxon's  contrary

assertion  that the  district  court erred  in  finding that  the

federal  statute does  not  preempt the  contract and  promissory

estoppel  claims on which Ellenwood received a jury verdict.  The

State  of Maine joins  Ellenwood in arguing  that   503  does not

preempt  a claim  of  handicap discrimination  brought under  its

                    

     5  According  to  Exxon,  only  Counts  X  and  XII  of  the
complaint,  charging the  company  with obtaining  and disclosing
private information, survived preemption.

                               -6-

Human Rights Act, 2A Me. Rev. Stat. Ann. tit. 5,   4571-72 (Supp.

1992).   We take up each  plea for reversal in  turn, following a

brief review of the well established contours of preemption law.

B. Preemption Principles
                        

     The preemption  doctrine is rooted in  the Supremacy Clause,

which  invalidates  state  laws  that  "interfere  with,  or  are

contrary to, the laws of congress."  Gibbons v. Ogden, 22 U.S. (9
                                                     

Wheat.)  1, 211  (1824).   See also  Cipollone v.  Liggett Group,
                                                                 

Inc.,  112 S.  Ct. 2608,  2617 (1992).   A  court's sole  task in
    

determining whether a state statute is preempted is to  ascertain

whether Congress  intended the federal  law to have  such effect.

California  Federal Savings &amp; Loan Ass'n v. Guerra, 479 U.S. 272,
                                                  

280 (1987);  Massachusetts Medical  Society v. Dukakis,  815 F.2d
                                                      

790, 791 (1st Cir.  1987).  Although Congress may  articulate its

intent explicitly, see, e.g., Jones v. Rath Packing Co., 430 U.S.
                                                       

519,  532 (1977), it does not always  do so, and the challenge of

preemption law is to  identify occurrences of implied preemption.

Preemption by implication may take place in different ways.

     First,  congressional intent  to  preempt state  law may  be

inferred when  the scheme of  federal regulation in  a particular

area is  sufficiently pervasive  and complex "to  make reasonable

the  inference that  Congress  `left no  room' for  supplementary

state regulation,"  California Federal Savings &amp;  Loan Ass'n, 479
                                                            

U.S. at 281 (quoting  Rice v. Santa Fe  Elevator Corp., 331  U.S.
                                                      

218, 230 (1947)); see also Dukakis, 815 F.2d at 791.   Second, in
                                  

areas where Congress has not entirely displaced state regulation,

                               -7-

state  law will  be deemed  preempted to  the extent  it actually

conflicts  with  federal law.    Such  a conflict  occurs  either

because "`compliance with both federal and state regulations is a

physical  impossibility,'. . . ,  or because the state law stands

`as an obstacle to  the accomplishment and execution of  the full

purposes and objectives of Congress.'" California Federal Savings
                                                                 

&amp;  Loan Ass'n,  479 U.S. at  281 (quoting Florida  Lime &amp; Avocado
                                                                 

Growers, Inc. v. Paul, 373 U.S.  132, 142-143 (1963) and Hines v.
                                                              

Davidowitz,  312  U.S.  52, 67  (1941)).    See  also O'Brien  v.
                                                             

Consolidated Rail Corp., 972 F.2d 1, 3 (1st Cir. 1992).
                       

      These alternative  avenues to  preemption do not  mean that

either route is to be chosen lightly.  The Supreme Court recently

reiterated  the longstanding principle that "`the historic police

powers of the States  [are] not to be superseded by . . . Federal

Act unless that  [course is]  the clear and  manifest purpose  of

Congress.'"  Cipollone,  112 S.  Ct. at 2617  (quoting Rice,  331
                                                           

U.S. at 230).  Thus, the presumption is against  preemption.  Id.
                                                                

at 2618.

     C.  Applying the Principles
                                

     1. State handicap discrimination statutes.
                                              

     Section   503  contains   no   express  language   regarding

preemption.   Our task, therefore,  is to determine whether there

are  other  indicia  of  Congressional  intent  to  render  state

discrimination  laws  ineffectual  against  federal  contractors.

Exxon essentially makes a two-pronged argument.   First, it cites

legislative  history suggesting  that  Congress sought  a uniform

                               -8-

federal remedy for violations of   503, which would be frustrated

if contractors  additionally were subject to  varying state laws.

Thus, according to Exxon, Congress must have intended  to preempt

state provisions.

     Second,  Exxon  suggests that  the  detailed  nature of  the

administrative  scheme  promulgated   under     503  demonstrates

Congress's intent  to foreclose  other types of  remedies against

federal contractors.   Exxon  maintains that, while  Congress has

not  fully occupied  the field  of handicap  discrimination, with

respect  to federal  contractors,  it  has  "`left no  room'  for

supplementary state  regulation,"  California Federal  Savings  &amp;
                                                                 

Loan Ass'n, 479 U.S. at 281.
          

     In our  view, what  Exxon offers  as proof  of an intent  to

preempt  falls short  of the  mark.   The legislative  history on

which  the company  relies  is  a  single  passage  in  a  Senate

Committee Report relating to amendments to the Rehabilitation Act

that were  enacted a year  after the Act itself.   The amendments

made no  change in either  sections 503 or  504 of the  Act,6 but

the Senate Report commented:

          It  is  intended  that  sections 503  and  504  be
     administered  in  such  a  manner  that  a  consistent,
     uniform,    and    effective   Federal    approach   to
     discrimination   against   handicapped  persons   would
     result.  Thus, Federal  agencies and departments should
     cooperate in developing standards and policies so  that
     there  is a  uniform,  consistent  Federal approach  to
     these sections.

                    

     6  Section 504,  29 U.S.C.    794,  prohibits discrimination
against the handicapped in  federally funded programs, the United
States Postal Service, and in Executive agencies.

                               -9-

S.  Rep. No.  1297,  93d  Cong.,  2d  Sess.,  reprinted  in  1974
                                                           

U.S.C.C.A.N. 6373, 6391.

     Exxon  claims  this passage  demonstrates that  Congress was

seeking  an  exclusive  approach  to  handicap discrimination  by

federal  contractors,  and  that,  consequently,  it  must   have

intended   503 to displace parallel state laws governing the same

conduct.  Even without regard for the lesser weight accorded this

subsequent   history  than  would   be  accorded  contemporaneous

legislative comments,  see Heckler v.  Turner, 470 U.S.  184, 209
                                             

(1985), we believe  Exxon has read far  too much into  the quoted

remarks.

     We are persuaded that the passage in no way implicates state

law but  instead reflects  Congress's concern  about the lack  of

coordination  on  the  federal  level between  the  two  agencies
                                     

responsible for  implementing sections 503  and 504.   The Senate

Report continues from  the portion quoted  above to elaborate  on

the agencies' relationship:

     The  Secretary of the  Department of Health, Education,
     and Welfare, because of that Department's experience in
     dealing   with   handicapped  persons   and   with  the
     elimination  of discrimination  in other  areas, should
     assume responsibility for coordinating the  section 504
     enforcement  effort and for establishing a coordinating
     mechanism with the Secretary of the Department of Labor
     to  ensure a consistent  approach to the implementation
     of sections 503 and 504. 

S.  Rep.  No.  1297, 93rd  Cong.,  2d  Sess.,  reprinted in  1974
                                                           

U.S.C.C.A.N. 6373, 6391.  In our view, Congress was calling for a

more  uniform and consistent  "Federal approach to discrimination
                                      

against handicapped  persons," id. (emphasis  added); nothing  in
                                 

                               -10-

the passage indicates that  it was seeking to eliminate  any role

for state  law.  See D'Amato v. Wisconsin Gas Co., 760 F.2d 1474,
                                                 

1482 (7th Cir. 1985) (by insisting on coordination,  Congress was

directing  "that the two responsible agencies were not to work at

cross purposes  or to duplicate each  other's efforts") (citation

omitted).

     Exxon's second basis for  inferring an intent to  preempt --

the comprehensive  and detailed  regulations promulgated  under  

503  --  is  equally unavailing.    The  fact  that Congress  has

implemented an  extensive regulatory scheme in  a particular area

does not lead necessarily  to the conclusion that it  intended to

displace parallel state remedies.  As the Supreme Court stated in

Hillsborough  County v. Automated Medical Laboratories, Inc., 471
                                                            

U.S. 707, 716-18 (1985):

     To infer pre-emption whenever  [a federal agency] deals
     with a problem comprehensively is  virtually tantamount
     to  saying that  whenever a  federal agency  decides to
     step into  a field, its regulations  will be exclusive.
     Such  a rule  .  . .  would  be inconsistent  with  the
     federal-state  balance embodied in our Supremacy Clause
     jurisprudence.

See also R.J.  Reynolds Tobacco  Co. v. Durham  County, 479  U.S.
                                                      

130, 149 (1986) (preemption should not be inferred simply because

federal  agency's regulations  are comprehensive).    Exxon cites

nothing  in the state provisions  that would make compliance with

both  state law  and  the  detailed     503  scheme  a  "physical

impossibility," Florida  Avocado &amp; Lime Growers, 373 U.S. at 143,
                                               

and, in the absence of other evidence of preemptive intent, there

is no basis for displacing the state law.

                               -11-

     In  accepting Exxon's  argument  that  Congress intended  to

preempt  state  anti-discrimination   remedies  against   federal

contractors, the  district court relied entirely  on the analysis

of the Eleventh  Circuit in  Howard v. Uniroyal,  Inc., 719  F.2d
                                                      

1552 (1983).  In Howard, the  plaintiff had alleged a claim under
                       

Alabama law as a third party beneficiary of the   503 affirmative

action clause contained in contracts between his employer and the

federal government.

     The Eleventh Circuit  rejected this  claim.    It held  that

state  contract remedies  could  not be  used  to enforce     503

essentially for the reasons Exxon has offered to us in support of

its  preemption  argument.    Emphasizing  the  Senate   Report's

reference to federal uniformity  and the comprehensiveness of the

   503   administrative  scheme,   the  Howard  court   found  it
                                              

"reasonable to infer that Congress left no room in section 503(b)

for state contract  actions to supplement it," id. at  1559.  The
                                                 

court   concluded   that  allowing   the  plaintiff   to  broaden

enforcement of  the affirmative action  clause by means  of state

law  could frustrate  directly  the specific  scheme designed  by

Congress, allowing  a private  claim through  the back  door that

couldn't come through the front door.

     An inference of preemption  was further warranted, the court

held, because  Congress's substantial  interest in  enforcing the

affirmative  action  clause  --  determining  appropriate  terms,

conditions  and  remedies  --  was "more  substantial"  than  the

                               -12-

state's  interest   in  providing   a  remedy  for   third  party

beneficiaries seeking to enforce the same clause.  Id. at 1561.
                                                     

     We believe Exxon and the district court have relied unwisely

on Howard, which  differs from  this case in  a crucial  respect.
         

There, the  plaintiff sought to  use state  law to enforce    503

itself;  the  court  ruled  that Congress  intended  the  federal

administrative  remedy  to  be  the  plaintiff's  sole  means  of

enforcing  the   affirmative  action  clause.     Here,  however,

Ellenwood  is  seeking to  enforce  not    503,  but  independent

obligations created by state anti-discrimination statutes.

     The claim in this  case does not threaten the  uniformity of
                                                              

the     503  system.     Rather,  the   issue  here  is  one   of

compatibility, specifically,  whether  there  is  any  basis  for
             

inferring  that  Congress  believed an  independent  state remedy

could not co-exist with the    503 system.  Howard is not helpful
                                                  

in  this  context.    In  the  employment  discrimination  field,

Congressional enactments  "have long evinced a  general intent to

accord parallel or  overlapping remedies against discrimination."

Alexander v. Gardner-Denver  Co., 415  U.S. 36, 47  (1974).   See
                                                                 

also  California Federal  Savings  &amp; Loan,  479  U.S. at  282-83;
                                         

Kremer  v.  Chemical Construction  Corp.,  456  U.S. 461,  468-69
                                        

(1982);  Muncy v. Norfolk and  Western Railway Co.,  650 F. Supp.
                                                  

641, 644 (S.D.W. Va.  1986) (ruling that    503 does not  preempt

state human  rights act).   Nothing  in    503, which is  focused

narrowly on the contractual requirement for an affirmative action

                               -13-

clause,  provides  a  basis  to  infer  a  departure  from   that

traditional approach.

     In  addition,  several  references  in    503's  legislative

history suggest that,  rather than seeking  to preempt state  law

through   comprehensive    legislation,   Congressional   leaders

recognized that the federal statute was a modest one:

      "We  are  just  beginning  to  do too  little  as  the
     dimension   of   the   problem   grows   in   geometric
     proportion."  Congressman Vanik, Congressional Record -
     -  House 18137 (June 5, 1973); "[W]e have only begun to
     scratch  the  surface  in  meeting  the  needs  of  our
     disabled fellow citizens."  Congressman Brademus [sic],
     Congressional  Record --  House  30149  (September  18,
     1973); "I do not  consider [this bill] to be  a perfect
     bill,  or  in  all  honesty, even  an  adequate  bill."
     Senator  Randolph, Congressional Record -- Senate 34586
     (July 18, 1973).7

Raytheon Co. v. Fair  Employment and Hous. Comm'n, 46  Fair Empl.
                                                 

Prac. Cas. (BNA) 1089, 1099 (Cal. Sup. Ct. 1988), aff'd, 212 Cal.
                                                       

App. 3d 1242, 261 Cal. Rptr. 197 (2d Dist. 1989).

     A year later, in the Rehabilitation  Act Amendments of 1974,

Congress  added  a   provision  requiring  state  agencies   that

administer  programs funded  under  the Act  to take  affirmative

action to  employ and advance  qualified handicapped  individuals

who  are  covered under     503.   See  Senate  Report No.  1297,
                                      

reprinted in 1974 U.S.C.C.A.N., at 6391-92.  The Senate Committee
            

Report noted that  these agencies "are  expected to adopt  strong

affirmative  action programs  which  are at  least equivalent  to
                                                  

those now being  developed for  Federal agencies."   Id. at  6392
                                                       

                    

     7 Both Congressman Brademas  and Senator Randolph were among
the  managers of the legislation.   See Conf.  Rep. No. 500, 93rd
                                       
Cong., 1st Sess., reprinted in 1973 U.S.C.C.A.N. 2143, 2154.
                              

                               -14-

(emphasis  added).     These  comments,  although   referring  to

administering   agencies   rather   than   federal   contractors,

nevertheless  suggest  that Congress  both acknowledged  the role

played  by  states in  the  area of  handicap  discrimination and

assumed that states might choose to provide  different -- greater

--  protection than that afforded by the federal government.  See
                                                                 

Raytheon, 46 Fair Empl. Prac. Cas., at 1099.8
        

     Finally,  we  note  that,   in  the  recent  Americans  with

Disabilities Act of 1990, 42 U.S.C.    12101-12213, which amended

the  Rehabilitation  Act  and  extended   remedies  for  handicap

discrimination  against  many  more  private  employers, Congress

stated  explicitly  that  the  legislation  did  not  "limit  the

remedies, rights, and procedures of any .  . . law of any State .

. . or jurisdiction that provides greater or equal protection for

the rights  of individuals with disabilities than are afforded by

this chapter."     42 U.S.C.    12201(b).   While  this provision

obviously  can have no effect on our view of Congressional intent

in 1973,  it is  a particularly  pertinent example  of Congress's

historical   practice  of   allowing  overlapping   remedies  for

employment discrimination.9

                    

     8 We ackowledge that this post-enactment legislative history
is  of  less weight  than  contemporary  commentary,  but  it  is
nevertheless of some significance.   See, e.g., Heckler, 470 U.S.
                                                       
at 209; Cannon v.  University of Chicago, 441 U.S.  677, 686-687,
                                        
n.7 (1979).  

     9 The absence of a provision disclaiming preemption from the
Rehabilitation Act of 1973  does not demonstrate, in  the absence
of  other  evidence,  an  intent  to  foreclose  state  remedies.
Because of its far more comprehensive reach, the ADA is likely to
have  appeared  more  preemptive  than  the  earlier  legisation.

                               -15-

     Exxon attempts  to distance this case from  the tradition of

overlapping  remedies  in  two  ways.   First,  it  asserts  that

Congress has a unique  interest in regulating federal contractors

and,  second, it claims that  the area of handicap discrimination

requires an  extraordinary balancing of  competing interests that

distinguishes it from  other types of  employment discrimination,

such  as those  involving race, gender  or age.   In the handicap

discrimination   field,  Exxon  maintains,   the  possibility  of

conflicting judgments is much greater because courts in different

jurisdictions could reach  widely disparate  conclusions on  such

basic  questions  as  what  constitutes a  "handicap"  and  which

handicapped persons are "qualified" to hold particular positions.

Restricting individuals to their   503 remedy would ensure that a

federal  contractor doing business  in more than  one state would

face uniform obligations nationwide.

     We think it unlikely that Congress has a special interest in

immunizing   federal   contractors  from   obligations  otherwise

applicable to them under state handicap  discrimination statutes.

These companies may do  only $2,500 in business with  the federal

government, with the bulk of their enterprise devoted to commerce

within  a  single  state.    This  division  gives  the  state  a

substantial interest  in protecting  the employment  interests of

its  handicapped citizens.   The developing nature  of the issues

raised in  the field  of handicap  discrimination  strikes us  as

                    

Congress evidently made the  sensible decision to avoid confusion
by including an express provision.  

                               -16-

insufficient  justification for  excusing  these  employers  from

obligations imposed on others who differ only in that the federal

government is not one of their customers.

     Moreover,  Exxon's  obligation  is  not  simply to  identify

reasons why Congress might have departed from its usual practice,

but to demonstrate a reasonable basis for inferring that Congress

did, in fact, intend to make the federal remedy exclusive in this

single  area of employment discrimination law.  Exxon has offered

nothing from which we can discern such an intent. 

       In sum, we find no "clear and manifest" intent on the part

of  Congress  to  preempt  state  handicap discrimination  claims

against  federal contractors.  Indeed, we find no signals of such

an intent.10

     2. Contract and promissory estoppel.
                                        

     In its appeal, Exxon contends that the district court should

have extended its   503 preemption ruling to Ellenwood's contract

and  promissory estoppel claims as  well.  Exxon  points out that

these claims  allege that  the company  breached an  agreement or

promise  not   to  discriminate  on  the   basis  of  Ellenwood's

"handicap"  of  alcohol  abuse.   Again  relying  solely  on  the

uniformity rationale, Exxon argues that all state claims based on

the same  assertedly discriminatory  conduct are foreclosed  by  

503.

                    

     10 Our  preemption analysis  applies as well  to Ellenwood's
claim for wrongful discharge based on public policy.  We offer no
view,  however, as  to  whether such  a  claim exists  under  the
applicable state law.

                               -17-

     Our ruling on the statutory claims also is dispositive here.

We note, however, one instance in which a contract claim based on

statements in a company policy manual may be  preempted by   503.

Regulations  promulgated under the  statute require  employers to

post  notices  of their  Rehabilitation  Act  obligations and  of

employee  rights under    503  in "conspicuous  places."   See 41
                                                              

C.F.R.   60-741.4(d).  If  an employer included such a  notice in

its  policy manual solely to comply with this regulation, a state

contract claim based on a breach of the manual provision arguably

would be preempted by the federal law.  See Arellano v. Amax Coal
                                                                 

Co., 56 Fair Empl. Prac. Cas. (BNA)  1519, 1524-25 (D. Wy. 1991).
   

Such a  claim, though in the  guise of a contract  claim based on

the manual, would seem no different from one directly asserting a

breach of   503.  A direct claim under   503 unquestionably would

be preempted for the reasons set out in Howard.
                                              

     Exxon does not  contend that  the statements  at issue  here

were  required by     503.   Indeed, such  a contention  would be

patently unsupportable.  Ellenwood's contract and estoppel claims

are  not  premised on  a  general notice  of  Exxon's affirmative

action obligations toward handicapped  individuals, but on a very

specific written  assurance from the  company that  it would  not

disadvantage employees for seeking treatment for alcoholism.

     We  therefore   hold  that  the  district   court  correctly

determined that Ellenwood's contract and estoppel claims were not

preempted by   503.

                               -18-

                  II. The Role of Admiralty Law
                                               

     Our conclusion that   503 does not preempt Ellenwood's state

statutory and common  law claims  does not end  our inquiry  into

whether those claims are  foreclosed by federal law.   Exxon also

contends that, even if   503  does not preempt them, maritime law

does.  We consider this contention first as to the state statutes

and second as to the contract and estoppel claims.

A. State handicap discrimination statutes.
                                         

     In a brief footnote, the  district court observed that, even

if it had erred in its judgment about   503 preemption, the state

handicap  discrimination claims nevertheless  would be foreclosed

because  maritime law, rather than state  law, governs all issues

surrounding Ellenwood's  employment as a chief  engineer on board

ship.  The court  stated that, "I am not aware of any basis under

maritime  law for such a recovery."  Memorandum of Decision, Oct.

15, 1991, at 4 n.3.

      The district court underestimated  the role state law plays

in maritime cases.  Supreme Court cases make it clear that courts

in admiralty cases may reach beyond maritime precedents and apply

state laws "absent  a clear conflict with  the federal [maritime]

law," Askew v. American Waterways Operators, Inc., 411  U.S. 325,
                                                 

341 (1973).  See  also Romero v. International Terminal  Co., 358
                                                            

U.S.  354, 373-75, 378, n.42  (1959); Just v.  Chambers, 312 U.S.
                                                       

383, 391  (1941); Lyon v. Ranger  III, 858 F.2d 22,  27 (1st Cir.
                                     

1988); 1 S. Friedell, Benedict  on Admiralty   112, at 7-36  (7th
                                            

ed.  1991); 14 C. Wright, A. Miller &amp; E. Cooper, Federal Practice
                                                                 

                               -19-

and Procedure  (hereafter Wright  &amp;  Miller)    3672, at  441-444
                                           

(1985).

     Exxon contends that this is a case of  conflict.  It asserts

that  applying state non-discrimination  statutes in an admiralty

case  will contravene  federal maritime  law by  undermining that

"most fundamental and long established characteristic of maritime

law: the need for `harmony  and uniformity' of that law."   Exxon

Brief at 21  (quoting Southern  Pacific Co. v.  Jensen, 244  U.S.
                                                      

205, 216  (1917)).  See also  Miles v. Apex Marine  Corp., 111 S.
                                                         

Ct.  317,  322-23  (1990)  (noting "`the  constitutionally  based

principle that federal admiralty  law should be "a system  of law

coextensive  with,   and  operating  uniformly   in,  the   whole

country"'") (quoting  Moragne v.  States Marine Lines,  Inc., 398
                                                            

U.S. 375, 398 (1970)  (quoting The Lottawanna, 21 Wall.  558, 575
                                             

(1875)));  Carey v. Bahama Cruise  Lines, 864 F.2d  201, 207 (1st
                                        

Cir. 1988).

     Once again,  however, Exxon heralds the  need for uniformity

without an appreciation for the boundaries of its relevance.  All

state laws, if given effect in admiralty cases, will interfere to

a degree with the uniformity of admiralty law.  See 1 Benedict on
                                                                 

Admiralty    112,  at  7-36.   But  when Congress  established  a
         

separate admiralty  jurisdiction and  empowered the  judiciary to

develop substantive  maritime principles  for use  nationwide, 14

Wright  &amp; Miller   3671, it simultaneously assured that state law
                

would  continue to play some role in maritime affairs through the

                               -20-

"saving to  suitors" clause.11  This  provision allows plaintiffs

to  pursue,  in  addition  to  maritime  relief,  ordinary  civil

remedies provided by state law,  so long as they do not  conflict

with  the national  substantive maritime  law.   See 14  Wright &amp;
                                                    

Miller   3672, at 440-444.

     Through  the years,  the  Supreme Court  has confirmed  that

"[t]he  State and  Federal Governments  jointly  exert regulatory

powers" in maritime  matters, Romero, 358 U.S. at 374,  and it is
                                    

by now well established that state law is displaced only  when it

materially  prejudices "the  characteristic features  of maritime

law," 1 Benedict on Admiralty   112, at 7-36.  As we  observed in
                             

Carey, "the Supreme Court . . . no longer construes the Admiralty
     

Clause  as  requiring  `rigid  national  uniformity  in  maritime

legislation.'" 864 F.2d at 207 (citation omitted).  See also Lyon
                                                                 

v. Ranger III, 858 F.2d at 27; G. Gilmore &amp; C. Black, The  Law of
                                                                 

Admiralty,  at 49-50 (2d ed. 1975).   In other words, a state law
         

claim should not be  dismissed simply because it would  result in

differing  remedies  for plaintiffs  in  different  parts of  the

country; such  a claim  is foreclosed  only if  the state  law in

question frustrates  a fundamental tenet  of admiralty law.   See
                                                                 

                    

     11 The  Judiciary  Act of  1789  granted the  federal  trial
courts  "exclusive original  cognizance  of all  civil causes  of
admiralty  and  maritime  jurisdiction,"  but  also  reserved  to
"suitors, in all  cases, the right of a  common law remedy, where
the common  law is competent to  give it."   See Southern Pacific
                                                                 
Co., 244 U.S.  at 215-216.  In its present form,  see 28 U.S.C.  
                                                     
1333(1),   the  clause   gives  the   district   courts  original
jurisdiction, "exclusive of the  courts of the States,"  of: "Any
civil  case  of admiralty  or  maritime  jurisdiction, saving  to
suitors  in  all  cases all  other  remedies  to  which they  are
otherwise entitled."

                               -21-

Steelmet,  Inc. v. Caribe Towing Corp., 779 F.2d 1485, 1488 (11th
                                      

Cir. 1986).

     For example,  in  Carey, 864  F.2d at  207, we  held that  a
                            

Massachusetts rule barring tort recovery when a plaintiff is more

than 50 percent negligent could not be applied in a maritime case

because  "[o]ne of  the  essential and  longstanding features  of

substantive admiralty law is  that contributory negligence can be

considered only  in  mitigation of  damages."   The  rule  wholly

foreclosing  recovery is  "`completely incompatible'  with modern

admiralty practice."  Id.  (quoting Pope &amp; Talbot, Inc.  v. Hawn,
                                                                

346 U.S. 406, 409 (1953)).

     Although the rule barring state claims only if they directly

conflict   with  basic  maritime  principles  often  requires  "a

delicate accommodation  of federal  and state interests,"  Carey,
                                                                

864  F.2d at  207,  we have  been  shown nothing  in  substantive

maritime  law that is even  potentially at odds  with state human

rights  statutes such as those underlying Count IV of Ellenwood's

complaint.     Congress's  only   legislation  in  the   area  of

handicapped rights  has not been directed at  maritime cases and,

as  discussed  supra,  its  legislation  did  not  preempt  state
                    

remedies.  We find no indications that the absence of substantive

maritime  law  governing   issues  concerning  individuals   with

handicaps  reflects a  federal  interest  in protecting  maritime

employers from such obligations.   See 1 Benedict on  Admiralty  
                                                               

112,  at  7-37.    To  the  contrary,  the  Rehabilitation  Act's

                               -22-

applicability to maritime employers demonstrates federal approval

of such obligations.

     Thus, the district court's observation that maritime law has

not  addressed  handicap  discrimination  specifically  is not  a

reason to  dismiss the state claim but a basis upon which to give

effect to  the state provisions.   Maritime law  historically has

appreciated  the  leading  role  of state  statutes  in  creating

additional  bases of recovery.  In maritime wrongful death cases,

for example, remedies first were provided solely under state law.

See Miles, 111  S. Ct. at 320-23; Moragne v. States Marine Lines,
                                                                 

Inc., 398 U.S. 375,  397 (1970).  When Congress  enacted maritime
    

wrongful  death legislation  in 1920,  it provided  remedies only

where state law did not.  Miles,  111 S. Ct. at 321; Moragne, 398
                                                            

U.S. at 397-98.  State statutes continued to  play a primary role

for  another  fifty  years, until  the  Supreme  Court  created a

general  maritime cause of action for wrongful death.  See Miles,
                                                                

111 S. Ct. at 321-323; Moragne, 398 U.S. at 398-402.12
                              

      In its reply  brief, the  State of Maine  notes a  possible

concern that  strict state standards regarding  employment of the

handicapped  would  conflict   with  the  maritime   doctrine  of

seaworthiness.   The  State emphasizes,  however, that  under its

law, any legitimate physical  requirements for crew members under

                    

     12 Even  today, plaintiffs  may invoke state  wrongful death
statutes  under  the  saving   clause  insofar  as  they  involve
accidents  in  territorial waters  and do  not conflict  with the
substantive  principles  developed  under the  maritime  wrongful
death  doctrine.  See Offshore Logistics, Inc. v. Tallentire, 477
                                                            
U.S. 207, 227 (1986).

                               -23-

the   seaworthiness   doctrine   would   constitute   bona   fide

occupational requirements that would  provide a defense to claims

brought under the statute.  See 2A Me. Rev. Stat. Ann.  tit. 5,  
                               

4572(1)  (Supp. 1992).    Of course,  whether  or not  a  state's

statute specifically included such a defensive provision,  vessel

owners obviously could not be held liable for damages under state

anti-discrimination   laws   when  federal   maritime  principles

required the employer to  make the contested employment decision.

In that narrow way, maritime law would be preemptive.

     As a  general matter, however, we conclude  that state human

rights statutes may  be applied  in maritime cases.   Indeed,  it

would  be anomalous for maritime  law, which has  always shown "a

special solicitude for the welfare of seamen and their families,"

Miles,  111 S. Ct. at  327, to reject  such an employee-sensitive
     

provision. See  also Smith v.  Atlas Off-Shore Boat  Serv., Inc.,
                                                                

653 F.2d 1057, 1063 (5th Cir. Unit A 1981) (noting "the admiralty

court's protective attitude  towards the seaman).   "`[C]ertainly

it better becomes the humane and liberal character of proceedings

in admiralty to  give than to withhold the remedy.'"   Miles, 111
                                                            

S. Ct. at  327 (quoting Moragne,  398 U.S. at 387  (quoting Chief
                               

Justice Chase in  The Sea Gull, 21 F. Cas.  909, 910 (No. 12,578)
                              

(CC Md. 1865))).  See also Austin v. Unarco Industries, Inc., 705
                                                            

F.2d 1, 6  n.1 (1st Cir. 1983) (state  law "is generally referred

to only  when it affords greater protection to maritime employees

than that afforded by admiralty law").

      B. Contract and promissory estoppel.
                                         

                               -24-

     Exxon  contends  that,  in  allowing the  jury  to  consider

Ellenwood's  contract and  estoppel  claims,  the district  court

improperly created an exception to the well-established rule that

maritime  employment is terminable at will by either party in the

absence  of a  contract setting  a specific  term.   According to

Exxon,  maritime  law  has  "clung tenaciously"  to  the  at-will

principle,  and only  one  narrow exception  previously has  been

carved from it.  In Atlas Off-Shore Boat Serv., 653 F.2d at 1062-
                                              

63, the court  permitted a  claim for wrongful  discharge when  a

seaman was fired for filing a  personal injury claim that he  was

entitled  to file by statute.  No additional exceptions should be

allowed  to erode  the  strength of  the at-will  doctrine, Exxon

argues, since the seaman's rights as an employee already are well

protected  by federal statute.  See generally, e.g., 46 U.S.C.   
                                                   

10302,  10303, 10313,  10502,  10504,  10505, 10506  (prescribing

procedures governing meals, hours and wages for seamen).

     Exxon misperceives  the district court's ruling.   The court

did  not devise  a new  "wrongful discharge"  cause of  action on

behalf  of Ellenwood.  It simply recognized the obvious fact that

-- notwithstanding the general rule that a seaman's employment is

at-will  -- a maritime employer may  make a contractual agreement

with, or an enforceable promise to, its employees.

     In this case, Ellenwood claimed that Exxon had promised that

his  job   security  and   future  opportunities  would   not  be

jeopardized  if  he sought  treatment for  alcoholism.   The jury

found that the requirements for establishing a binding obligation

                               -25-

were  met.  We  see no reason  why maritime law  would invalidate

this self-imposed obligation.13

     Accordingly, we affirm the  district court's judgment on the

breach of contract and estoppel claims.  See infra Section V.
                                                  

         III.  Negligent Infliction of Emotional Distress
                                                         

     The  jury awarded  Theodore Ellenwood  $50,000 and  his wife

$25,000  on their  claims for  negligent infliction  of emotional

distress.   The district  court overturned these  verdicts on the

ground that  maritime plaintiffs may not  recover for negligently

caused  emotional  damages unless  they  demonstrate accompanying

physical  injury  or  impact.14    The  Ellenwoods  presented  no

evidence of physical harm.

     In  granting  judgment for  defendants,  the district  court

noted that the Supreme Court in Atchison, Topeka and Santa Fe Ry.
                                                                 

                    

     13 Exxon does not  argue that the district  court improperly
instructed  the jury  on  the elements  necessary to  establish a
contract or promissory estoppel claim in these circumstances, and
we therefore do not delve into this issue.  See, e.g., Pearson v.
                                                              
John Hancock Mutual  Life Ins.  Co., No. 92-1684,  slip op.  (1st
                                   
Cir. Nov.  10, 1992)  (discussing factors necessary  to establish
contract based on employee manual).
     We do note that, as  Exxon recognizes in its reply brief,  a
contract must  be "reasonably  certain" to  be enforceable.   See
                                                                 
Restatement (Second) of Contracts   33 (1981).  An estoppel claim
                                 
similarly must  be supported by a  sufficiently definite promise.
See Santoni v. Federal  Deposit Ins. Corp., 677 F.2d  174, 178-79
                                          
(1st  Cir. 1982).   Exxon does  not --  and, in  our view, cannot
reasonably -- argue that its policy statement assuring no adverse
consequences  based  on  alcoholism  treatment  is insufficiently
definite to support a contract or estoppel claim.

     14 The court very prudently allowed  the claims to go to the
jury,  thus   foreclosing  the  possibility  of   a  later  heavy
investment of time and expense in the event that it should render
a  judgment  notwithstanding  the   verdict  and  that  we  would
disagree.

                               -26-

Co.   v.  Buell,  480  U.S.  557,  568  (1987),  had  raised  the
               

possibility of recovery for purely emotional injury in cases such

as this one.15   The court recognized, however, that  our circuit

has  had no opportunity since  Buell to consider  the issue.  See
                                                                 

Moody v. Maine Cent. Ry.  Co., 823 F.2d 693, 694 (1st  Cir. 1987)
                             

(declining  to  consider   physical  injury  requirement  because

plaintiff  failed to show causation).  It therefore relied on our

decision in Bullard  v. Central  Vermont Ry., 565  F.2d 193,  197
                                            

(1st Cir. 1977), to hold that a physical injury is a prerequisite

for recovery of emotional distress damages.16

     In  the aftermath  of Buell,  recovery for  wholly emotional
                                

injury under the Jones Act and FELA has become an "important  and

recurring issue" of federal law.  Ray v. Consolidated Rail Corp.,
                                                                

112  S.  Ct. 914  (1992) (White,  J.,  dissenting from  denial of

certiorari).17   The circuits  vary in  their  treatment of  such

claims.  See, e.g., Ray v. Consolidated Rail Corp., 938 F.2d 704,
                                                  

705 (7th Cir. 1991) (no recovery under FELA unless injury results

                    

     15  Buell  involved  a   claim  brought  under  the  Federal
              
Employers Liability Act (FELA), 45 U.S.C.    51-60, which creates
a negligence cause  of action for railroad  workers against their
employers.  The Jones Act, 46 U.S.C. App.   688, creates the same
cause of  action for seamen,  and incorporates  by reference  the
FELA.   Caselaw developed  under both statutes  guides subsequent
interpretation of either of them.  See Mitchell v. Trawler Racer,
                                                                 
Inc.,  362 U.S. 539, 547  (1960); Gaston v.  Flowers Transp., 866
                                                            
F.2d 816, 817 (5th Cir. 1989).

     16 Recovery for wholly  emotional injuries was not at  issue
in Bullard because the plaintiff also  had injured his foot.  See
                                                                 
565 F.2d at 197 &amp; n.3. 

     17  Ray was, in fact,  an FELA case,  but, as noted earlier,
            
see supra note 15, FELA jurisprudence applies to Jones Act cases.
         

                               -27-

from physical  contact or threat of physical  contact); Taylor v.
                                                              

Burlington Northern R.R. Co., 787 F.2d 1309, 1313 (9th Cir. 1986)
                            

(claims  for wholly  mental injury  are cognizable);  Holliday v.
                                                              

Consolidated  Rail Corp.,  914 F.2d  421, 426-27  (3d  Cir. 1990)
                        

(rejecting specific  claim, but suggesting that,  under the right

circumstances,  emotional distress  damages may  be recoverable);

Gaston  v. Flowers  Transp., 866  F.2d 816,  821 (5th  Cir. 1989)
                           

(same).18

     On  appeal, plaintiffs  urge us  to hold  explicitly that  a

seaman may  recover emotional distress damages  without showing a

physical injury.  Resolving this  issue requires not only careful

analysis of  the specific facts of  the case at hand,  but also a

review of  common law  jurisprudence  and policy  considerations.

Buell, 480  U.S. at 568-70.  As the Supreme Court noted in Buell,
                                                                

state court decisions reveal  a number of "doctrinal divergences"

concerning  intentional and  negligent  infliction  of  emotional

distress.  Id.  at 569-70.   The Court  therefore theorized  that
             

recovery  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."   Id. at  568.  It
                                                   

                    

     18  In Plaisance v. Texaco,  Inc., 937 F.2d  1004, 1009 (5th
                                      
Cir.  1991), a  divided panel  of the  Fifth Circuit  announced a
broad rule  permitting recovery for negligently  caused emotional
injury,  but  denied recovery  in  the instant  case  because the
accident  was  so unexceptional  that  the  significant emotional
injury  sustained  by  a   tugboat  captain  was  not  reasonably
foreseeable.  Subsequently,  in an  en banc  ruling, the  circuit
                                           
affirmed  the denial of recovery but withdrew the broad ruling of
law.   966 F.2d 166 (1992).  The Supreme Court denied certiorari.
See 61 U.S.L.W. 3400 (U.S. Nov. 30, 1992). 
   

                               -28-

concluded its discussion by cautioning that, in this area of law,

"broad  pronouncements  . .  . may  have  to bow  to  the precise

application  of  developing legal  principles  to  the particular

facts at hand."  Id. at 570.
                   

     Because the  Ellenwoods have failed to  present their claims

of negligence with particularity, this is not an appropriate case

in which to undertake such a substantial inquiry.  Counts VII and

VIII  of the  complaint,  in the  words  of the  district  court,

alleged  "intentional  and   negligent  infliction  of  emotional

distress  on both  Mr. and Mrs.  Ellenwood in  ending Ellenwood's

career and disseminating confidential information  concerning his

condition."    Memorandum  of  Decision,  Oct.  15,  1991, at  2.

Neither  the  complaint  nor  the  Ellenwoods'  briefs,  however,

specifically  identifies the  negligent  acts  of  commission  or

omission.19   In closing  argument, plaintiffs'  counsel referred

in one sentence, in conclusory terms, to the negligent infliction

claim.20  

                    

     19 For  example,  was the  alleged  breach of  contract  the
asserted negligent action?  Or was it the manner in which the new
policy  was devised?  or  communicated?  or  applied?    Was  the
disclosure of  Ted Ellenwood's  alcohol treatment negligent?   If
so,  how?   Instead  of  specifically  identifying the  allegedly
unreasonable  conduct   that  constituted   a  breach  of   duty,
plaintiffs apparently  assumed that we could,  and would, discern
from  the underlying facts one or more bases for their negligence
claims.  This approach dates back to plaintiffs' complaint, where
they  simply incorporated  by  reference  the factual  background
underlying the  other causes of action to  support the negligence
claims.  See Complaint at    88-90.
            

     20 Following lengthy discussions of the contract, promissory
estoppel and intentional infliction of emotional distress claims,
counsel stated:

                               -29-

     The  lack  of attention  devoted  to this  claim  is further

illustrated   by  plaintiffs'  assertion   that  Ted  Ellenwood's

negligence  cause of  action was  brought under  general maritime

law, not the Jones Act.  See, e.g., Tr. Vol. XII, at 7.  In fact,
                                  

the Jones Act provides the  exclusive recovery in negligence  for

claims  by seamen  against their  employers.   See Miles  v. Apex
                                                                 

Marine,  111 S. Ct. 317, 324 (1990)  (Jones Act was a response to
      

The Osceola, 189  U.S. 158 (1903), which established  that seamen
           

could recover  under general maritime law  for injuries resulting

from unseaworthiness but not negligence); Beltia v. Sidney Torres
                                                                 

Marine  Transport, Inc., 701 F.2d 491, 493 (5th Cir. 1983) (Jones
                       

Act is "the  sole basis upon which a  seaman or his beneficiaries

may   sue  his  employer  for  negligence")  (citation  omitted).

                    

          I  suggest  to you  that  even if  you  don't find
     outrageousness   [an   element   of   the   intentional
     infliction tort], you should  still return a verdict of
     negligent  infliction  of  mental  distress.    I feel,
     however, very  strongly that intentional  infliction of
     emotional distress  has  been  shown  because  of  this
     policy itself and  the actions  Exxon Shipping  Company
     took against  him deliberately  after this policy  came
     into effect.

Tr. Vol. XI, at 98.

     The court's  instructions on the negligence  count also were
framed broadly.  The  court told the jury that the plaintiff must
prove that  (1) Exxon  acted or  failed to  act as  "a reasonably
prudent corporation would act in the  management of its affairs;"
(2)   that  "severe   emotional  distress"   to  plaintiffs   was
foreseeable;  and (3) that plaintiffs suffered such distress as a
result of negligence.  See Tr. Vol. XI, at 47.
                          

                               -30-

Ellenwood's general  maritime cause of action  could be dismissed

for that reason alone.21

     The Supreme Court in Buell only speculated that  some claims
                               

for purely emotional injury  may be brought under the  FELA.  See
                                                                 

Moody, 823 F.2d at  694 (door to recovery only  "somewhat ajar").
     

Conducting the  particularized review  needed to evaluate  such a

claim  here  would  require  a detailed  examination  of  Exxon's

assertedly  negligent conduct, its context, and its impact on the

Ellenwoods.   Arguably,  even  in a  routine  case, it  would  be

inappropriate  for us to construct a theory of negligence so that

we could analyze a  claim of apparently little importance  to the

plaintiffs.  A  fortiori, we would be ill-advised  to do so here,
                        

where we  are asked  to take  a precedential  step with a  highly

circumscribed license from the Supreme Court.22

                    

     21  Although  Mrs. Ellenwood's  claim  arises  under general
maritime law, the  limitations on recovery contained in the Jones
Act  nonetheless  are relevant  because  her  claim is  based  on
assertedly  negligent  conduct  governed  by the  statute.    See
                                                                 
generally Miles  v. Apex Marine, 111  S. Ct. at 327  ("We sail in
                               
occupied waters.  Maritime  tort law is now dominated  by federal
statute . . . .").

     22  We note that the viability  of emotional distress claims
based  on  management  policy  decisions  and   other  day-to-day
interactions between  employees and  employers is  a particularly
sensitive  matter.   See,  e.g.,  Holliday  v. Consolidated  Rail
                                                                 
Corp.,  914 F.2d  421,  425, 427  (3d  Cir. 1990);  Lancaster  v.
                                                             
Norfolk and Western Ry. Co.,  773 F.2d 807, 813 (7th  Cir. 1985);
                           
Puthe v.  Exxon Shipping  Co., No.  89-CV-1619,  1992 U.S.  Dist.
                             
LEXIS 14950, at *33-34 (E.D.N.Y.  Sept. 26, 1992).  Additionally,
we question whether a case such as this,  whose dominant claim is
that the  defendant intentionally reneged on  a promise, presents
the sort of tortious conduct properly compensable under the Jones
Act.

                               -31-

     We  decline  to  explore  the  frontiers  of  the  negligent

infliction  tort  in  these   circumstances.    Accordingly,  the

district court's judgment vacating the  Ellenwoods' damage awards

is affirmed.23

                       IV. Punitive Damages
                                           

     The  Ellenwoods contend  that  the district  court erred  in

refusing  to submit  their punitive  damages  claim to  the jury.

This argument  faces a  threshold barrier because  the Ellenwoods

have  prevailed   so  far  only  on   contractual  claims,  which

ordinarily  do not  support an  award of  punitive damages.   See
                                                                 

Restatement (Second)  of Contracts   355  (1981)24; Thyssen, Inc.
                                                                 

v. S.S. Fortune  Star, 777 F.2d  57, 62-63 (2d  Cir. 1985).   See
                                                                 

generally Molzof v.  United States,  112 S. Ct.  711, 715  (1992)
                                  

(noting  common  law  understanding that  punitive  damages  were

awarded  "to punish  defendants for  torts committed  with fraud,
                                          

actual malice, violence, or oppression") (emphasis added).

                    

     23  We find  no  merit in  plaintiffs'  assertions of  error
concerning their claims  for intentional infliction of  emotional
distress.   The instructions accurately reflected prevailing law,
see Restatement  (Second) of Torts    46 cmt. d, and  the court's
                                  
evidentiary decisions fell well  within its broad discretion, see
                                                                 
Harrison v. Sears, Roebuck and Co., No. 92-1055, slip  op. at 6-7
                                  
(1st Cir. Dec. 9, 1992) (expert testimony); Elgabri v. Lekas, 964
                                                            
F.2d 1255, 1261 (1st Cir. 1992) (Rule 403).  

     24 This provision states:

     Punitive damages  are not  recoverable for a  breach of
     contract unless the conduct constituting the breach  is
     also a tort for which punitive damages are recoverable.

                               -32-

     Despite the  general principle, the Ellenwoods  contend that

an award  of punitive damages  is permissible here  because their

claim  involved breach  of  a non-contractual  legal duty  not to

discriminate  on   the  basis   of  a  perceived   handicap  and,

consequently,    contractual    limitations   on    damages   are

inapplicable.  See Reply Brief at 22.  They seek support from our
                  

decision upholding punitive damages for a shipowner's willful and

callous  withholding  of  a  seaman's  maintenance  and  cure  in

Robinson v.  Pocahontas, Inc., 477  F.2d 1048, 1051-52  (1st Cir.
                             

1973).   There,  we emphasized the  Supreme Court's  statement in

Vaughan   v.   Atkinson,  369   U.S.   527,   532  (1962),   that
                       

"[m]aintenance and  cure differs from  rights normally classified

as contractual" because "the duty to provide maintenance and cure

`is imposed by the law itself as one annexed to the employment.'"

Robinson, 477 F.2d at 1052 (citation in Vaughan omitted).
                                               

     This argument assumes that the Ellenwoods proved more than a

breach  of contract.    They have  not.   In  Robinson,  punitive
                                                      

damages  were permissible  because  the "`[t]he  duty to  provide

maintenance and cure is in no  real sense contractual, and a suit

for failure to provide maintenance or cure can hardly be equated,

therefore, with an action  for breach of contract,'" 477  F.2d at

1052  n.3  (quoting  Vaughan,  369  U.S.  at  534  (Stewart,  J.,
                            

dissenting)).     Ellenwood's  proven  breach  of   contract  and

promissory  estoppel claims did not arise from a duty "imposed by

the law itself,"  Robinson, 477  F.2d at 1052,  but from  Exxon's
                          

self-imposed  obligation not  to jeopardize  the job  security or

                               -33-

future  opportunities  of  employees  who  sought  treatment  for

alcoholism.    The Ellenwoods  have  cited  no maritime  decision

awarding punitive damages for breach of this type  of contractual

obligation.  See Thyssen, Inc., 777 F.2d at 62 (no  case found in
                              

which  admiralty court  awarded  punitive damages  for breach  of

contract).

     We are aware of a recent trend to permit punitive damages in

the contract setting  in a narrow range of circumstances.   See 5
                                                               

A.  Corbin, Corbin  on Contracts    1077  (1964 and  Supp. 1992).
                                

This  practice has  been  deemed appropriate  when the  breaching

party  acted  with "[t]he  state  of  mind which  accompanies  an

intentional tort." id. (Supp.)  at 179.   In this case, the  jury
                     

found against  the Ellenwoods  on their intentional  tort claims.

Plaintiffs,  however,  maintain  that  this  finding  should  not

foreclose punitive  damages because they claim  that the standard

for punitive damages  under maritime law  is less demanding  than

the standard for  intentional infliction  of emotional  distress.

See  Restatement (Second) of Torts    46; Muratore  v. M/S Scotia
                                                                 

Prince, 845 F.2d  347, 354 (1st  Cir. 1988) (maritime  standard).
      

And  so,   plaintiffs  contend   that  the  rejection   of  their

intentional  tort claims  is not  fatal to  an award  of punitive

damages.

     Assuming that maritime law would  permit a limited role  for

punitive damages in the  contract setting -- an  issue we do  not

reach -- we  think it  inconceivable that such  damages would  be

available  when the  jury  specifically has  rejected plaintiffs'

                               -34-

accompanying  intentional tort  claims.   Thus, even  if punitive

damages may be awarded  under maritime tort law based  on conduct
                                           

that would not satisfy the standard for intentional infliction of

emotional distress, we decline  to hold that they may  be awarded

for breach of contract in these circumstances.
                      

     Whether punitive damages  may be available  should Ellenwood

prevail upon remand on  the handicap discrimination claims  is an

issue  not  before us  today.   At the  moment  this is  solely a

contract  case,  and  we  adhere  to  the  settled  rule  of  law

prohibiting such an award.

                        V. Burden of Proof
                                          

     Exxon attempted  to prove at  trial that, even  if Ellenwood

had  not been  removed from  his chief  engineer's post  in April

1989,  he would have  lost his job  later in the  year when Exxon

downsized its  fleet.   Consequently, because Exxon  continued to

pay Ellenwood's  full salary  and benefits through  January 1991,

the company argued that Ellenwood was not entitled to any damages

for breach of contract or promise.

     On appeal, Exxon claims  that the district court incorrectly

instructed the jury that  the company bore the burden  of proving

that  Ellenwood would have been terminated  for bona fide reasons
                                                         

unrelated  to the new alcohol  rehabilitation policy.  The burden

should have been placed on the plaintiff, Exxon asserts, and this

error entitles the  company, at a minimum, to a  new trial on the

contract and estoppel claims.  

                               -35-

     We  find it unnecessary to consider this issue on the merits

because we conclude  that Exxon  failed to preserve  it.  At  two

separate  times, once before the  jury charge and  once after it,

the court and  counsel discussed the instruction on this defense.

On the first occasion, during the precharge conference, the court

announced its decision to  impose the burden on the  defendant to

prove  that  Ellenwood would  have lost  his job  for independent

reasons, and  twice  repeated  its  intention  to  give  such  an

instruction.  See Tr. Vol. XI, at 24, 28, 29.
                 

     At  that  time,  Exxon  responded  by  asking  the  court to

include,  within the  "independent reasons"  portion of  the jury

charge,  a sentence  about  "business judgment."   This  addition

would have emphasized  to the jury  that, in considering  whether

Ellenwood would have been  terminated as a result of  the fleet's

downsizing, it was not permitted to second-guess Exxon's business

judgment  in devising and applying  its ranking system.   See Tr.
                                                             

Vol.  XI, at  26.   The  ensuing  discussion  focused on  how  to

communicate  to the jury that its task was limited to determining

whether  the ranking  system  was  a  pretext.   The  instruction

ultimately adopted  by the  court included language  suggested by

Exxon's counsel.   Id. at 29.  At no  time during this discussion
                     

did counsel object to the court's imposing the burden on Exxon.

     Subsequently, the  district court  instructed the  jury that

"Exxon Shipping  has the  burden of  proof to  show you that  Mr.

Ellenwood would have lost  his job for independent, nonpretextual

reasons," see Tr. Vol. XI,  at 51.  Following the full  charge on
             

                               -36-

all claims, the district court held a sidebar conference in which

it heard and responded  to both sides' objections.  At that time,

Exxon's counsel requested an "additional  instruction" on damages

for breach of contract or promise.

     The  proposed  addition  consumes  43  lines  in  the  trial

transcript.   See  Tr.  Vol. XI,  at  64-66.25   The  first  four
                 

paragraphs  contained essentially  the  instruction  on  business

judgment that  Exxon had requested earlier.   See Tr. Vol. XI, at
                                                 

65 ("You may not consider whether in your opinion the evaluations

or  the rankings  are appropriate  or were  done in a  manner you

agree with.).   The next  section opens with  the assertion  that

"[t]he  sole  question  you  are  to  consider  is whether  Exxon

Shipping  maintained its  employee ranking  list in  good faith,"

id., and then states that, in deciding  the question, "plaintiffs
  

have  the  burden of  proof."    Id.   The  proposal  goes on  to
                                   

elaborate  on  the  plaintiff's  burden,  i.e.,  to  show  "by  a

preponderance of the evidence  that Exxon Shipping manipulated or

otherwise misused its ranking procedure in bad faith to cause Mr.

Ellenwood  to  be  ranked lower  on  the  ranking  list of  chief

engineers than he otherwise would have been."  Id. at 65-66.
                                                 

     The district  court gave  the following response  to Exxon's

proposal:

          So far as the requested lengthy instruction  . . .
     by  the defendant involving rank, proximate cause, good
     faith, management  practices and so on,  I am satisfied
     that  would involve me in too great a commentary on the

                    

     25 The  requested instruction is reproduced  in its entirety
in an appendix to this opinion.

                               -37-

     evidence.    Instead,  I've   given  a  general  charge
     concerning the  issue of whether  Exxon would otherwise
     have terminated him, required  only that its reasons be
     independent and  not pretextual.   I believe  that that
     adequately meets the standards in this area.

Tr.  Vol. XI, at 72.  It  appears that the district court focused

primarily,  if not exclusively,  on the first  portion of Exxon's

lengthy request  and concluded  that its own  pretext instruction

adequately met Exxon's  concern that  the jury  not consider  how

good the  ranking system was but only whether it was used in good

faith.  Exxon  made no further  response and did  not inform  the

court that it also was concerned about who had the burden on this

issue.

     What Exxon did  here was not enough to  entitle it to assert

this issue on appeal as a basis for a new trial.  Counsel did not

object  to the court's  burden instruction, but  proposed only an

addition.   The  proposal was  long and,  in its  latter portion,

contradicted the court's earlier instruction on burden.  When the

court reacted with comments apparently directed only to the first

part of the  proposal, counsel  made no effort  to highlight  its

concern  regarding the  burden.   This  omission is  particularly

significant  in light  of the  earlier discussion,  which focused

solely on the business judgment rule.  

     Similarly, in its post-trial  memorandum seeking a new trial

on the contract and estoppel claims, under  the heading "Employee

Rankings," Exxon argued only  that the court erred "in  declining

to instruct the jury that it could not  second guess the business

judgment  of  Exxon  Shipping  with respect  to  its  performance

                               -38-

evaluations and employee ranking system."  See Memorandum, at  9.
                                              

Again, no reference was made to the burden of proof.

     Not until  its reply brief  on appeal  did Exxon  articulate

clearly  and concisely its burden of proof objection.  It is well

established, the company now contends, that the burden of proving

bad  faith must  be  on the  party  seeking  to show  it  because

"[d]isproving bad  faith is  almost always close  to impossible."

Reply Brief, at 17.   Because the issue here was not  the quality

of Exxon's ranking system, but  whether the system was maintained

in good faith,  the company claims the burden should have been on

Ellenwood to  prove that  Exxon manipulated  its rankings  in bad

faith.

     We do  not reach this argument  because it is too  late.  To

consider  disassembling  the  court and  jury's  substantial work

without clearer  notice than  Exxon gave  to  the district  court

would be to  snub the requirement  in Fed. R.  Civ. P. 51 that  a

party must  "stat[e] distinctly  the matter objected  to and  the

grounds  of objection."   Accordingly,  we leave  undisturbed the

district court's judgment on the contract and estoppel claims.

                       VI. Benefits Offset
                                          

     Exxon has claimed error  in the district court's instruction

to the  jury not to  offset the  damages award by  the amount  of

special retirement benefits the  company has paid or will  pay to

Ellenwood.  Under a "special sea service plan," Exxon contributed

to  an  annuity  that  distributed monthly  payments  to  retired

                               -39-

employees in  amounts based on life expectancy.   Ellenwood began

receiving annuity payments of nearly $20,000 a year following his

retirement in  1991 at age 45.   It is these  payments that Exxon

seeks to have offset.

     Exxon's argument is based on  the general principle that  an

award of  lost earnings makes the  wrongfully discharged employee

whole and  that to add pension benefits would give the employee a

windfall.   Ellenwood  counters with  his own  windfall argument:

subtracting the  expected benefits from the  damages award treats

the employer who breaches  an employment contract more charitably

than  one who  has observed  one faithfully.   Both  parties cite

caselaw to support their claims.

     In fact, however, we  conclude that the record made  in this

case, rather than general principles,  dictates the result.   The

relevant facts are contained  in a letter from an  Exxon official

in  response  to a  request from  Ellenwood's counsel  to provide

"[t]he  1990  percentages of  payroll  for  the various  benefits

provided  to  employees."    Brief  of   Plaintiffs-Appellees  at

Addendum  18.   The  letter, which  is  not mentioned  in Exxon's

brief, itemized  the percentages of payroll  attributable to life

insurance, medical and dental insurance, Medicare, a thrift plan,

long term  disability insurance, workers' compensation,  and "all

other."  These items totalled 20.8%  But included in the listing,

indeed  heading  the  list,  was "Annuity"  and  its  percentage,

"(2.7%)".   In other words, this percentage was deducted from the

                               -40-

total of the  above listed  items, making the  bottom line  total

percentage for fringe benefits 18.1%.

     The effect  of this listing  was to indicate  to Ellenwood's

economic  expert on damages that he should add to his computation

of lost earnings 18.1% of those earnings  to reflect compensation

in  the form  of fringe  benefits.   Exxon did  not add  into the

benefits  total the 2.7% annuity  item, which would  amount to an

annual  payment  of approximately  $2,300.    Indeed, the  letter

subtracted the 2.7% from the remaining total of benefits, thereby

reducing by a substantial amount the present discounted value  of

Ellenwood's fringe benefits.

     Had there  been no breach  of the  employment contract,  the

$2,300  yearly  contribution  apparently  would  have  bought  an

annuity that, upon Ellenwood's retirement  at age 65, would  have

yielded annual payments in an amount much larger than the present

$20,000 amount.   We look upon this amount as  having been bought

by prior Exxon contributions  and earned by Ellenwood as  part of

Exxon's compensation package.  To allow Exxon a further deduction

for the  income stream  purchased  by the  annual $2,300  payment

would seem to be, as Ellenwood argues, to allow a double credit.

     This,  at least, is how we read the testimony of plaintiff's

economist,  Dr. McCausland,  who  had asked  for the  percentages

applicable to fringe benefits.  He testified that

     the  fringe benefit  [sic] had  to be put  into present
     value terms . . . , it's how many dollars do we have to
     give  him  today so  he'll  have that  amount  of money
     available  to  him in  each year  to  pay for  the same
     fringe benefits.

                               -41-

          And I based it on their fringe benefit package . .
     . .  And what I did, I took 18.1 percent of the present
     value  of  lost earnings,  and  that  works out  to  be
     $294,528.79.

Tr. Vol. V, at 111.  On cross examination Exxon's  counsel asked,

"Now you were also  aware that Mr. Ellenwood is  receiving almost

$20,000 a year in pension benefits currently from Exxon  Shipping

Company?"  To this, Ellenwood's counsel objected, saying, "that's

his money, and it  is not properly considered to  be mitigation."

Whereupon Exxon's counsel withdrew the question.  Id. at 121-122.
                                                    

     On this record  the district  court ruled that  it was  "the

burden of  proof of the defendant  to come forward and  show that

these are benefits being received that  should be subtracted from

the amounts that  plaintiff would  otherwise . .  . receive"  and

that "the state of the record doesn't permit that determination."

Tr. Vol. XI, at 35.   We agree.  Indeed, it seems to  us that the

record  is not merely insufficient to support a basis for offset,

but points affirmatively to an already accomplished deduction.

                         VII. Conclusion
                                        

     The following is a brief summary of our major holdings:

     (1)    we reverse  the  district court's  ruling  that state

statutes  prohibiting discrimination against  the handicapped are

preempted  by the Rehabilitation Act of 1973 and maritime law, as

well as its ruling  that plaintiff's claim of violation  of state

public policy is  similarly preempted, and the  case therefore is

remanded for further proceedings on such claims;

                               -42-

     (2) we  affirm the district court's  ruling that Ellenwood's

state contract  and promissory estoppel claims  are not preempted

by either the Rehabilitation Act or maritime law;

     (3) we  decline to  address the  Ellenwoods' claim that  the

district court improperly granted Exxon's request for judgment as

a  matter  of law  on their  claims  for negligent  infliction of

emotional  distress,   concluding  that  these  claims  were  not

adequately developed;

     (4) we  affirm the  district court's  refusal to  submit the

issue of punitive damages to the jury;

     (5) we find that  Exxon failed to preserve its  challenge to

the  district court's instruction imposing upon  it the burden of

demonstrating  that Ellenwood  would have  been removed  from his

chief engineer's  position  in late  1989 for  bona fide  reasons
                                                        

independent  of his  participation in  an alcohol  rehabilitation

program;

     (6) and we  affirm the district court's decision  to exclude

from  the  jury's  damages  calculation  Ellenwood's sea  service

retirement benefits.26

     The judgment of the district  court is therefore affirmed in
                                                                 

part,  reversed in  part,  and remanded  for further  proceedings
                                                                 

consistent with this opinion.  No costs. 
                                       

                    

     26  We  have  reviewed   the  district  court's  rulings  on
Ellenwood's privacy claims, and find no error. 

                               -43-

                             APPENDIX

The following  is the full  text of  Exxon's proposed  additional

instruction  on damages  for breach  of contract  or  promise, as

discussed supra at page 36.
               

     As you  know, Mr.  Ellenwood ceased receiving  a salary
     from Exxon Shipping on  January 15, 1991.  If  you find
     as Exxon Shipping claims  that Mr. Ellenwood would have
     been  terminated prior to that time in the fall of 1989
     because  of his  low  performance  ranking compared  to
     other chief engineers when Exxon  Shipping's oceangoing
     fleet was downsized, then  no damages should be awarded
     even  if  you  find  that  Exxon  Shipping  breached  a
     contract with Mr. Ellenwood.

          Under  such circumstances,  the  conduct of  Exxon
     Shipping complained of here was not the proximate cause
     of  any loss Mr. Ellenwood  suffered.  If  on the other
     hand you  find that Mr.  Ellenwood would not  have been
     terminated  when  the  fleet  was  downsized,  you  may
     continue to consider damages.

          During  this  case  a  number  of  witnesses  have
     testified   regarding   Exxon  Shipping's   performance
     evaluation and ranking system.  This case is  not about
     whether  you  agree  with  or   like  Exxon  Shipping's
     performance  evaluation  or   ranking  procedures,   or
     whether  you  agree  with  or  like   Exxon  Shipping's
     employment practices.  As  I previously instructed you,
     you may not substitute your judgment for the company's.

          I  therefore   instruct   you  that   your   views
     concerning  whether Exxon Shipping's ranking system was
     well  administered  cannot  be  considered  by  you  in
     rendering  your decision  in this  case.   You  may not
     consider whether in your opinion the evaluations or the
     rankings are appropriate  or were done in  a manner you
     agree with.

          The sole  question you are to  consider is whether
     Exxon Shipping  maintained its employee ranking list in
     good faith.  In  deciding the question, plaintiffs have
     the burden of  proof.  By  that I mean you  must decide
     whether the  plaintiffs have proven  by a preponderance
     of  the evidence  that  Exxon  Shipping manipulated  or

                               -44-

     otherwise misused its ranking procedure in bad faith to
     cause Mr. Ellenwood to  be ranked lower on the  ranking
     list of  chief engineers  than he otherwise  would have
     been.

          In   essence,   did   Exxon   Shipping   make  its
     evaluations  of  Mr. Ellenwood  in  bad  faith with  an
     intent  to  injure  him   in  order  to  improve  Exxon
     Shipping's defense in this case.

          If you conclude that plaintiffs have not proven by
     a  preponderance  of the  evidence that  Exxon Shipping
     acted in bad faith in establishing  its ranking list in
     1989,  then  you  must  find  that  Mr.  Ellenwood  has
     suffered  no  damages  under  either  of  his  contract
     claims.

                               -45-
