                              PRECEDENTIAL
      UNITED STATES COURT OF APPEALS
           FOR THE THIRD CIRCUIT
                _____________

                    No. 13-3678
                   _____________

DELAWARE & HUDSON RAILWAY COMPANY, INC.
 doing business as CANADIAN PACIFIC RAILWAY;
 SOO LINE RAILROAD COMPANY doing business as
         CANADIAN PACIFIC RAILWAY;
    CANADIAN PACIFIC RAILWAY LIMITED,
                              Appellants

                          v.

      KNOEDLER MANUFACTURERS, INC.;
       DURHAM INDUSTRIAL SALES, INC.

                  _______________

    On Appeal from the United States District Court
       for the Western District of Pennsylvania
                (D.C. No. 1-11-cv-00314)
       District Judge: Hon. Sean J. McLaughlin
                   _______________

                       Argued
                  September 9, 2014
  Before: FISHER, JORDAN, and HARDIMAN, Circuit
                     Judges.

                  (Filed: January 9, 2015)
                     _______________

Scott D. Clements, Esq.
J. Lawson Johnston, Esq.
Dickie, McCamey & Chilcote
Two PPG Place – Ste. 400
Pittsburgh, PA 15222

Gregory N. Longworth, Esq. [ARGUED]
James L. Wernstrom, Esq.
Clark Hill
200 Ottawa Avenue, NW – Ste. 500
Grand Rapids, MI 49503
      Counsel for Appellants

Matthew R. Planey, Esq. [ARGUED]
Crabbe, Brown & James
500 S. Front Street – Ste. 1200
Columbus, OH 43215

Stuart H. Sostmann, Esq.
Marshall, Dennehey, Warner, Coleman & Goggin
600 Grant Street – Ste. 2900
Pittsburgh, PA 15219
      Counsel for Appellee, Knoedler Manufacturers Inc.




                             2
George T. McCool, Jr., Esq. [ARGUED]
Wright & O’Donnell
15 East Ridge Pike – Ste. 570
Conshohocken, PA 19428
      Counsel for Appellee, Durham Industrial Sales Inc.

                      _______________

                OPINION OF THE COURT
                    _______________

JORDAN, Circuit Judge.

       This case requires us to determine the scope of federal
preemption under the Locomotive Inspection Act (“LIA”), 49
U.S.C. § 20701. Appellant Delaware & Hudson Railway
Company, Inc., doing business as Canadian Pacific Railway,
and its subsidiaries (collectively, with the parent company,
“Canadian Pacific”) settled lawsuits brought by its employees
who had suffered injuries as a result of defective train seats.
Canadian Pacific then brought indemnification, contribution,
and     breach-of-contract     claims     against     Knoedler
Manufacturing, Inc. (“Knoedler”), which supplied the seats,
and Durham Industrial Sales, Inc. (“Durham”), which tried
unsuccessfully to repair the seats. Upon motions filed by
Knoedler and Durham (collectively the “Appellees”), the
United States District Court for the Western District of
Pennsylvania dismissed Canadian Pacific’s claims, holding
that they were preempted by the LIA. We disagree and will
vacate the District Court’s orders of dismissal and remand for
further proceedings.




                              3
I.    BACKGROUND

      A.     Statutory and Regulatory Background

       The LIA provides that “a locomotive … and its parts
and appurtenances” must be “in proper condition and safe to
operate without unnecessary danger of personal injury.”1 49
U.S.C. § 20701(1). Pursuant to the LIA, the Federal Railroad
Administration, which acts under the authority of the
Secretary of Transportation, 49 U.S.C. § 103(a), has
promulgated regulations on the governing standards of care

      1
          The LIA was previously known as the Boiler
Inspection Act (“BIA”), which covered only locomotive
boilers. Act of Feb. 17, 1911 ch. 103, § 2, 36 Stat. 913, 913-
14. In 1915, Congress amended the BIA’s scope to cover the
entire locomotive and its parts and appurtenances. Act of
Mar. 4, 1915, ch. 169, § 1, 38 Stat. 1192, 1192. It provides:
      A railroad carrier may use or allow to be used a
      locomotive or tender on its railroad line only
      when the locomotive or tender and its parts and
      appurtenances –
      (1) are in proper condition and safe to operate
      without unnecessary danger of personal injury;
      (2) have been inspected as required under this
      chapter and regulations prescribed by the
      Secretary of Transportation under this chapter;
      and
      (3) can withstand every test prescribed by the
      Secretary under this chapter.
49 U.S.C. § 20701.




                              4
for locomotive equipment, including seats, 49 C.F.R.
§ 229.119(a) (requiring locomotive seats to “be securely
mounted and braced”).

       While the LIA and its regulations provide binding
standards for the suppliers of locomotives and locomotive
equipment, as well as for railroad companies, 49 U.S.C.
§ 21302(a)(1); 49 C.F.R. § 229.7(b), the statute does not
provide a private right of action to employees injured by
defective equipment. Urie v. Thompson, 337 U.S. 163, 188-
89 (1949). Instead, an injured employee must bring an action
against his employer under the Federal Employers’ Liability
Act (“FELA”), 45 U.S.C. § 51 et seq. The LIA supplements
the FELA “by imposing on interstate railroads an absolute
and continuing duty to provide safe equipment” and has the
“purpose and effect of facilitating employee recover[y].”
Urie, 337 U.S. at 188-89 (citation and internal quotation
marks omitted).

        Once an employer has been found liable in a FELA
action, “it accords with the FELA’s overarching purpose to
require the employer to bear the burden of identifying other
responsible parties and demonstrating that some of the costs
of the injury should be spread to them.” Norfolk & W. Ry.
Co. v. Ayers, 538 U.S. 135, 165 (2003); see also Ellison v.
Shell Oil Co., 882 F.2d 349, 353 (9th Cir. 1989) (“FELA’s
purpose of providing recovery for injured workers is not
defeated by permitting an employer to recoup its losses in
part or in full from a third party, when the circumstances and
state law permit.”).




                              5
       B.     Factual History2

       General Electric (“GE”) built and maintained the
locomotives at issue in this case, under a contract it had with
Canadian Pacific. Pursuant to that agreement, Canadian
Pacific directed GE to install seats purchased from Knoedler.
GE complied, and Knoedler “agreed to provide seats of
suitable quality to prevent seat failures, and suitable for use in
Canadian Pacific’s locomotives, in the future.” (App. at 50.)

        In the late 1990s and early 2000s, GE and Canadian
Pacific became aware of problems with seat safety and
identified defects that were causing the seats to break. GE
discussed the nature of the defects and the repair process with
Knoedler but grew concerned that Knoedler would be unable
to make the necessary repairs.        To allay that concern,
Knoedler introduced GE to Durham and “promised that
Durham had the expertise and capacity to repair the seats on
Knoedler’s behalf.” (Appellant’s Opening Br. at 6-7.)

       GE and Durham subsequently entered into a contract
under which “Durham agreed to refurbish the Knoedler Seats
in such a way as to prevent future seat failures.” (App. at 51.)
Despite those repair efforts, the seats continued to break and,
as a consequence, four Canadian Pacific employees were

       2
          Because the District Court dismissed Canadian
Pacific’s first and second amended complaints in response to
the Appellees’ Rule 12(b)(6) motions to dismiss, we accept as
true all facts alleged in Canadian Pacific’s amended
complaints and draw all reasonable inferences in favor of
Canadian Pacific. Phillips v. Cnty. of Allegheny, 515 F.3d
224, 231 (3d Cir. 2008).




                                6
injured. The railroad eventually settled with its employees
for a total of approximately $2.7 million. Thereafter, it
sought to recoup its losses from Knoedler and Durham.

      C.     Procedural History

       Canadian Pacific filed this action against Knoedler and
Durham on December 16, 2011, asserting claims for
indemnification, contribution, breach of contract (with
Canadian Pacific claiming the rights of a third-party
beneficiary), product liability, and negligence under
Pennsylvania law. On March 9, 2012, Knoedler filed a
motion to dismiss the complaint. In response, the railroad
filed its First Amended Complaint on March 30, 2012,
reasserting the same claims but clarifying that the claims were
based on the Appellees’ violations of the LIA and their
breach of contractual promises to provide LIA-compliant
seats.3 Shortly thereafter, Durham and Knoedler filed their
motions to dismiss the First Amended Complaint.

       On February 12, 2013, the District Court issued an
Order and Memorandum Opinion dismissing Canadian
Pacific’s indemnification and contribution claims with
prejudice,4 concluding that they were preempted by the LIA.

      3
        Canadian Pacific later withdrew its product liability
and negligence claims at a hearing held on January 24, 2013.
      4
         The District Court’s first Order and Memorandum
Opinion references only Canadian Pacific’s indemnification
claims, not its contribution claims. The parties evidently
agree that the Court was addressing both indemnification and
contribution, and it appears to us, based on the District
Court’s first Order granting the Appellees’ motions to




                              7
The Court also dismissed the breach-of-contract claims,
saying that the company had not adequately pled its status as
a third-party beneficiary. The Court did, however, allow
Canadian Pacific to amend its contract claims, and it did so,
providing additional details about its standing as a third-party
beneficiary of the contracts. On August 1, 2013, the Court
issued a second Order and Memorandum Opinion dismissing
the breach-of-contract claims, concluding that they were also
preempted under the LIA. Canadian Pacific timely appealed
both of the District Court’s Orders.

II.    DISCUSSION5

       Canadian Pacific raises two arguments on appeal: first,
that its indemnification and contribution claims are not
preempted by the LIA because they are premised on a
violation of federal standards set by the LIA and


dismiss, that the Court in fact dismissed both the
indemnification and the contribution claims but simply
referred to those claims in short as being for indemnification.
       5
         The District Court had subject matter jurisdiction
under 28 U.S.C. § 1332(a)(3). Durham had argued that the
Court did not have personal jurisdiction over it, but because
the Court dismissed this matter on preemption grounds alone,
the personal jurisdiction issue was not addressed. Nothing in
our disposition of this matter implies any opinion on any
argument Durham may, upon remand, seek to advance on
personal jurisdiction. We have appellate jurisdiction pursuant
to 28 U.S.C. § 1291 and we exercise plenary review over the
orders of dismissal. Grier v. Klem, 591 F.3d 672, 676 (3d
Cir. 2010).




                               8
accompanying regulations, and, second, that its breach-of-
contract claims are not preempted by the LIA because they
are premised on a violation of express contractual duties. We
address those arguments in turn.

       A.     Preemption of Canadian Pacific’s
              Indemnification and Contribution Claim

         Congressional power to preempt state law derives from
the Supremacy Clause of the Constitution, which provides
that federal law “shall be the supreme Law of the Land …
any Thing in the Constitution or Laws of any State to the
Contrary notwithstanding.” U.S. Const. art. VI, cl. 2.
“Consideration of issues arising under the Supremacy Clause
start[s] with the assumption that the historic police powers of
the States [are] not to be superseded by … [federal law]
unless that [is] the clear and manifest purpose of Congress.”
Cipollone v. Liggett Grp., Inc., 505 U.S. 504, 516 (1992)
(first, second, and fourth alterations in original) (citation and
internal quotation marks omitted). “Often Congress does not
clearly state in its legislation whether it intends to pre-empt
state laws … .” Malone v. White Motor Corp., 435 U.S. 497,
504 (1978). When that is the case, “courts normally sustain
local regulation of the same subject matter unless it conflicts
with federal law or would frustrate the federal scheme, or
unless the courts discern from the totality of the
circumstances that Congress sought to occupy the field to the
exclusion of the States.” Id. At issue here is that latter type
of exclusion, known as “field preemption.”

      The paramount cases concerning preemption under the
LIA are Napier v. Atlantic Coast Line Railroad, 272 U.S. 605
(1926), and Kurns v. Railroad Friction Products Corp., 132




                               9
S. Ct. 1261 (2012). Napier involved challenges to two state
statutes: a Georgia statute that required fire boxes on
locomotives to be equipped with an automatic door, and a
Wisconsin statute that required locomotives to have cab
curtains.6 Napier, 272 U.S. at 607. The Supreme Court held
that the LIA preempted both state statutes because it was
“intended to occupy the field” pertaining to “the design, the
construction, and the material of every part of the locomotive
and tender and of all appurtenances.” Id. at 611, 613. Napier
thus concluded that only the Interstate Commerce
Commission – the agency then responsible for implementing
the LIA – had the authority to “set[] the standard” by which a
locomotive’s “fitness for service shall be determined.” Id. at
612.

       The Supreme Court recently revisited the preemptive
effect of the LIA in Kurns, in which it affirmed our decision
upholding the dismissal of an action for injuries from

      6
         Both the Georgia and Wisconsin statutes addressed
health and safety concerns. The automatic door on fire boxes
protected firemen from exposure to extreme temperatures
while stoking the furnace powering the locomotive; it
protected the firemen’s eyesight by reducing glare from the
fire (and consequently protected travelers for whom firemen
kept a lookout when the railroad crossed highways); and it
protected employees and the train itself in the event of an
explosion in the fire box. Napier, 272 U.S. at 609-10. Cab
curtains prevented snow from piling into the locomotive cabs
in the winter months and provided some measure of
protection against wind and cold temperatures, thereby
protecting engineers and firemen from discomfort and
weather-related illnesses. Id. at 610.




                             10
defective locomotive parts. 132 S. Ct. at 1270. The plaintiffs
in Kurns asserted design-defect and failure-to-warn claims
against locomotive equipment manufacturers. Specifically,
the plaintiffs argued that, under Pennsylvania law, the
equipment was defectively designed because it contained
asbestos and that the manufacturers failed to warn them about
dangers posed by asbestos exposure. Id. at 1264-65. The
Supreme Court rejected those claims, recognizing that they
were “directed at the equipment of locomotives,” id. at 1269,
and “f[e]ll within the [preempted] field … as … defined in
Napier,” id. at 1270. In so ruling, the Kurns Court also
rejected the plaintiffs’ argument that “the LIA’s pre-emptive
scope does not extend to state common-law claims, as
opposed to state legislation or regulation.” Id. at 1269. The
Court noted that Napier’s “categorical conclusion [of LIA
preemption] admits of no exception for state common-law
duties and standards of care.” Id.

       Knoedler and Durham incorrectly read Napier and
Kurns to say that all state claims regarding the design and
manufacture of locomotive equipment are preempted by the
LIA. But those decisions did not speak so broadly. They
were explicit in holding, and only holding, that a state may
not impose its own duties and standards of care on the
manufacture and maintenance of locomotive equipment. See
Kurns, 132 S. Ct. at 1269 (“We therefore conclude that state
common-law duties and standards of care directed to the
subject of locomotive equipment are pre-empted by the
LIA.”); Napier, 272 U.S. at 613 (“[R]equirements by the
states [regarding locomotive equipment] are precluded,
however commendable or however different their purpose.”).
The question left unanswered by Napier and Kurns is whether
the LIA preempts a state claim that is premised on a violation




                             11
of the duties and standards of care stemming from the LIA
itself; in other words, whether a state claim based on a federal
standard of care is preempted. We conclude that it is not.

        While there is no Supreme Court authority exactly on
point, there are plenty of strong hints that such an avenue to
relief is not foreclosed. The Court has held in other statutory
contexts that violations of federal law can be redressed
through state common-law claims. See, e.g., Silkwood v.
Kerr-McGee Corp., 464 U.S. 238, 258 (1984) (concluding
that a state-law remedy based on a violation of the Atomic
Energy Act was not preempted); see also Abdullah v. Am.
Airlines, Inc., 181 F.3d 363, 367 (3d Cir. 1999) (noting that
“[f]ederal preemption of the standards of care can coexist
with state and territorial tort remedies” and holding that state
law remedies for a violation of the Federal Aviation Act were
not preempted).7 More particularly, in the context of railroad

       7
          Silkwood and Abdullah are instructive even though
they involved express preemption clauses because the Atomic
Energy Act and the Federal Aviation Act also occupy their
particular fields. Silkwood, 464 U.S. at 240-41, 249 (stating
with respect to the Atomic Energy Act that “the federal
government has occupied the entire field of nuclear safety
concerns, except the limited powers expressly ceded to the
states” (internal citation and quotation marks omitted));
Abdullah, 181 F.3d at 367 (“[W]e hold that [the Federal
Aviation Act] establishes the applicable standards of care in
the field of air safety, generally, thus preempting the entire
field from state and territorial regulation.”); see also Altria
Grp., Inc. v. Good, 555 U.S. 70, 76 (2008) (noting that even if
a statute contains an express preemption clause, “the scope of
the statute [could still] indicate[] that Congress intended




                              12
safety laws, state-law claims have been permitted as a means
to redress federal violations. For example, in Crane v. Cedar
Rapids & Iowa City Railway Co., the Supreme Court stated
that a railroad employee can enforce a violation of the Safety
Appliance Acts (“SAAs”), 49 U.S.C. § 20301 et seq., through
the FELA but that a “nonemployee must look for his remedy
to a common law action in tort, which is to say that he must
sue in a state court, in absence of diversity, to implement a
state cause of action.”8 395 U.S. 164, 166 (1969). The Court

federal law to occupy the legislative field”). The Appellees
argue that Silkwood and Abdullah are inapplicable because, as
distinguished from the LIA which is silent on the point,
Congress indicated in the Atomic Energy Act and the Federal
Aviation Act that state common-law remedies would remain
available.     Silkwood, 464 U.S. at 251 (“[T]he only
congressional discussion concerning the relationship between
the Atomic Energy Act and state tort remedies indicates that
Congress assumed that such remedies would be available.”);
Abdullah, 181 F.3d at 375-76 (noting that the Federal
Aviation Act’s Savings and Insurance Clauses suggest that
Congress did not intend to preempt state-law remedies).
Those cases stand for the larger premise, however, that even
when Congress has occupied a particular field, state-law
claims to remedy federal violations are not necessarily
preempted.
      8
         Knoedler argues that Canadian Pacific is “standing in
the shoes of its employees” and therefore “is not, in a
technical sense, a ‘non-employee’” able to assert state claims
under Crane. (Knoedler Br. at 42.) But the FELA
specifically defines who is considered an “employee” and
Canadian Pacific does not fall within that definition. See 45
U.S.C. § 51 (“Any employee of a carrier, any part of whose




                             13
had in fact reached that same conclusion almost three decades
earlier in Tipton v. Atchison Tulsa, & Santa Fe Railway Co.,
when it stated that the SAAs “do not give a right of action for
their breach, but leave the genesis and regulation of such
action to the law of the states.” 298 U.S. 141, 147-48 (1936).
Thus, the Court could say a few years later that there is no
longer any question “as to the power of the state to provide
whatsoever remedy it may choose for breaches of the [SAAs].
The federal statutes create the right; the remedy is within the
state’s discretion.” Breisch v. Cent. R.R. of N.J., 312 U.S.
484, 486 (1941).

      Those cases are particularly relevant here, as the SAAs
are analogous to the LIA in many important respects. The
SAAs, like the LIA, regulate locomotive equipment.9 49

duties … shall be the furtherance of interstate or foreign
commerce; or shall, in any way … affect such commerce as
above set forth shall … be considered as being employed by
such carrier in such commerce and shall be considered as
entitled to the benefits of this chapter.”). Furthermore,
Knoedler’s argument that Canadian Pacific is not an
employee – so it has no cause of action under the FELA – but
at the same time is an employee – so it cannot bring state-law
claims for LIA violations either – sets up a needless no-win
scenario for railroads. See infra at pp. 13-14.
      9
          The SAAs differ from the LIA in that they expressly
require certain safety equipment to be used on railroad
carriers, such as automatic couplers, efficient hand brakes,
secure ladders with handholds or grab irons, and power
brakes sufficient to stop the train. 49 U.S.C. § 20302. The
LIA, however, more generally requires that a locomotive and
all its parts and appurtenances be in proper condition, safe to




                              14
U.S.C. § 20302.       Indeed, the “congressional purpose
underlying [the LIA] is basically the same as that underlying
[the SAAs]” – namely that locomotive equipment “be
employed in active service without unnecessary peril to life or
limb.” Urie, 337 U.S. at 190 (citation and internal quotation
marks omitted). Furthermore, neither the LIA nor the SAAs
provide for private enforcement; instead, railroad employees
can only enforce those statutes through the FELA. Urie, 337
U.S. at 188-89. “In this view, [the SAAs], together with the
[LIA], are substantively if not in form amendments to the
[FELA].” Id. at 189.

        With respect to preemption, both the LIA and the
SAAs have broad preemptive scope. See Kurns, 132 S. Ct. at
1267 (“Congress, in enacting the LIA, ‘manifest[ed] the
intention to occupy the entire field of regulating locomotive
equipment.’” (alteration in original) (quoting Napier, 272
U.S. at 611)); Gilvary v. Cuyahoga Valley Ry. Co., 292 U.S.
57, 60-61 (1934) (“So far as the safety equipment of
[railroad] vehicles is concerned, [the SAAs] operate to
exclude state regulation whether consistent, complementary,
additional, or otherwise.”). It is true that Napier suggested
that the scope of the SAAs’ preemption is limited to the
specific equipment listed in the statute, Napier, 272 U.S. at
611, but both Crane and Tipton involved a coupler, which is
expressly covered by the SAAs, Crane, 395 U.S. at 165;
Tipton, 298 U.S. at 145. Thus, the full preemptive effect of
the federal law was operative with respect to that equipment
and yet the Supreme Court allowed state common-law actions


operate, and adequately inspected and tested.       49 U.S.C.
§ 20701.




                              15
to remedy violations of the SAAs.10 Like the LIA, the SAAs
are silent as to whether state remedies are preempted.11
Despite that silence, the Supreme Court decided in Crane and
Tipton that relief under state law was not preempted.12


       10
          Tipton’s approval of Walton v. Southern Pacific Co.,
48 P.2d 108 (Cal. Ct. App. 1935), is also telling. In Walton,
the California Court of Appeals applied the state’s statute of
limitations to a wrongful-death claim alleging a violation of
the LIA, relying in part on cases involving the SAAs.
Walton, 48 P.2d at 115. The Supreme Court expressly
approved that analysis, stating that the Walton court
“[c]orrectly [held] that the same principles apply in an action
under [the LIA] as in one under [the SAAs].” Tipton, 298
U.S. at 151.
        As discussed previously, supra note 7, the Appellees
       11

discounted Silkwood and Abdullah as being irrelevant in part
because Congress had indicated with respect to the statutes at
issue in those cases that state-law remedies would be
excluded from preemption. That argument fails with respect
to the SAAs, further confirming that the Crane line of cases
are meaningful to the question of the preemptive scope of the
LIA.
       12
         Our dissenting colleague argues that Crane, Breisch,
and Tipton have little legal force in light of Kurns, and that, to
the extent they are still viable decisions, they should be read
as only applying to the SAAs, not the LIA. Dissent slip op. at
10-12. But nothing in the Kurns opinion undercuts or calls
into question the SAAs line of cases; in fact, the Supreme
Court did not once mention any of those cases in its decision.
Especially given the similarities between the LIA and the
SAAs, if the Supreme Court had intended to cast doubt on the




                               16
       Furthermore, congressional intent – which is “the
ultimate touchstone of preemption analysis,” Abdullah, 181
F.3d at 365 (citation and internal quotation marks omitted) –
suggests that state law remedies are not preempted under the
LIA. Congress’s silence with respect to state-law remedies
“takes on added significance in light of [its] failure to provide
any federal remedy” for LIA violations. Silkwood, 464 U.S.
at 251 (analyzing Congressional intent regarding the scope of
preemption under the Atomic Energy Act). If we were to
hold that state law claims asserting a violation of the LIA are
preempted, railroads would be left with no remedy, no matter
how obvious or egregious the liability of an equipment
supplier.13 We are not commenting on the culpability of the

vitality of its decisions in the context of the SAAs, it would
have done so explicitly. Although the dissent accuses us of
giving “short shrift to Kurns,” Dissent slip op. at 7, we are
faithfully applying the holding of Kurns, instead of
unnecessarily and, in our view, unwisely expanding its
language to cover the situation at issue here, as the dissent
would do.
       13
          The dissent contends that it is “crystal clear” that the
purpose of the LIA was not to protect railroads from lawsuits.
Dissent slip op. at 2. But Congress did intend to protect
railroads’ interests through the LIA, as we explained in our
opinion in the Kurns case: “The goal of the LIA is to prevent
the paralyzing effect on railroads from prescription by each
state of the safety devices obligatory on locomotives that
would pass through many of them.”               Kurns v. A.W.
Chesterton Inc., 620 F.3d 392, 398 (3d Cir. 2010), aff’d sub
nom. Kurns, 132 S. Ct. 1261 (citation and internal quotation
marks omitted). The dissent clearly agrees that the LIA does
have that purpose, given that one of the primary arguments in




                               17
Appellees here but are simply noting that Canadian Pacific
cannot sue them directly under the LIA because the LIA does
not provide for a private right of action. Similarly, Canadian
Pacific cannot sue them under the FELA because that statute
gives a remedy only to railroad employees. “It is difficult to
believe that Congress would, without comment, remove all
means of judicial recourse for those injured by illegal
conduct.” Silkwood, 464 U.S. at 251. And yet that would be
the result if Canadian Pacific’s state law indemnification and
contribution claims are preempted.14

the dissent is that allowing state-law claims to redress LIA
violations will threaten national uniformity of railroad safety
regulations. In so arguing, however, our colleague is
essentially saying that the LIA was intended both to protect
railroads from conflicting state regulations and also to
purposefully exclude railroads from obtaining judicial
recourse in a case like this. We consider that outcome
inconsistent and untenable.
       14
          The Appellees contend that the Ninth Circuit has
rejected the argument that the lack of a legal remedy should
weigh in an analysis of the preemptive effect of the LIA.
That court said in Law v. General Motors Corp., that,
“[b]ecause railroad operators are liable for any injuries
suffered by their employees, they would not buy locomotives,
cars and other equipment that fall short of [LIA] standards.”
114 F.3d 908, 912 (9th Cir. 1997). Knoedler relies on that to
argue that, if Canadian Pacific believes that Knoedler sells a
defective product, “it can see that justice is done by not
buying equipment from Knoedler or using a locomotive with
a Knoedler component again.” (Knoedler Br. at 34.) We
decline to adopt that analysis. While market forces may have
a long-term impact on the conduct of equipment




                              18
        There are other railroad-related cases in which the
Supreme Court has approved, in fact encouraged, the use of
state-law claims to redress violations of federal law. For
example, in Norfolk & Western Railway Co. v. Ayers, the
Court declined to allow the defendant railroad to have FELA
damages apportioned to third-party tortfeasors who
contributed to plaintiffs’ asbestos-related injuries. 538 U.S. at
143. The problem was not with making the third-party
tortfeasors share the load. The problem was with making that
sharing a matter of dispute in the FELA action, so that the
injured employee had to engage in the fight over apportioning
fault. The Supreme Court stated that “[o]nce an employer has
been adjudged negligent … it accords with the FELA’s
overarching purpose to require the employer to bear the
burden of identifying other responsible parties and
demonstrating that some of the costs of the injury should be
spread to them.” Id. at 165. In so concluding, the Court
relied on the “numerous FELA decisions … recognizing that
FELA defendants may bring indemnification and contribution
actions against third parties under otherwise applicable state
or federal law.” Id. at 162.

        One of those FELA decisions was Engvall v. Soo Line
Railroad Co., in which the Supreme Court of Minnesota held
that, in circumstances nearly identical to those here, state-law
claims redressing violations of the LIA are not preempted.
See 632 N.W.2d 560, 571 (Minn. 2001) (holding that a

manufacturers, they do not provide a remedy for losses
already incurred because of the violations of governing
standards of care. If Congress intended to foreclose all legal
remedies available to railroad companies seeking to recoup
FELA damages, it likely would have said so plainly.




                               19
railroad’s third-party complaint seeking contribution and/or
indemnification from an equipment manufacturer to recoup
FELA losses was not preempted because the railroad’s claims
were based on violations of the LIA, not state standards). The
District Court rejected Engvall, noting that it has been
criticized by other courts.15 But the one Court we must attend
to most carefully, the Supreme Court, favorably cited Engvall
twice in Ayers as an example of a case where a railroad was
able to recoup its FELA losses through state-law
indemnification and contribution claims. Ayers, 538 U.S. at
162 n.21, 164 n.23.

       15
           The District Court also relies on a number of cases
reaching a conclusion arguably at odds with Engvall, but
those cases are distinguishable because they are either actions
by railroad employees who already had a remedy under the
FELA, or they involved causes of action asserting state
standards of care, as opposed to federal standards of care. See
Stevenson v. Union Pac. R.R. Co., No. 4:07CV00522BSM,
2009 WL 129916, at *1 (E.D. Ark. Jan. 20, 2009) (“[Union
Pacific] seeks contribution and indemnification from Seats
based on theories of breach of warranty, negligence, and strict
liability.”); Bonner v. Union Pac. R.R. Co., No. CV03-134-S-
MHW, 2005 WL 1593635, at *10 (D. Idaho 2005)
(“Nowhere in this statement is the Court able to discern an
argument that GM-EMD violated the federal standard
imposed by LIA.”); Roth v. I & M Rail Link, L.L.C., 179 F.
Supp. 2d 1054, 1063-64 (S.D. Iowa 2001) (“Roth was a
railroad employee, and here a federal cause of action under
FELA exists.”); Union Pac. R.R. Co. v. Motive Equip., Inc.,
714 N.W.2d 232, 234 (Wis. Ct. App. 2006) (rejecting Union
Pacific’s assertion that the manufacturer was liable for
negligence, strict products liability, and breach of warranties).




                               20
        Furthermore, the policy behind preemption does not
support excluding the state-law claims at issue here. The
primary rationale for federal preemption in the field of
railroad safety regulation is national uniformity. Preemption
allows railroad carriers to abide by a single set of national
equipment regulations, instead of having to meet different
standards and, potentially, to change equipment when a train
crosses state lines. Kurns v. A.W. Chesterton Inc., 620 F.3d
392, 398 (3d Cir. 2010), aff’d sub nom. Kurns, 132 S. Ct.
1261 (“The goal of the LIA is to prevent the paralyzing effect
on railroads from prescription by each state of the safety
devices obligatory on locomotives that would pass through
many of them.” (citation and internal quotation marks
omitted)). It is therefore clear why Napier and Kurns did not
allow states to impose their own standards of care – either
through state regulations or through state tort liability – with
respect to locomotive equipment. But the enforcement under
state law of a federal standard of care does not undermine
national uniformity because it does not impose conflicting
regulations that a railroad must heed during interstate travel.

        Congress itself has indicated that the goal of uniform
railroad operating standards is not undermined when state-law
claims are used to enforce federal law. For example,
Congress explicitly stated in the Federal Railroad Safety Act
that state law claims seeking damages for federal violations
are not preempted. 49 U.S.C. § 20106(b)(1). If Congress
thought state claims alleging a failure to comply with federal
railroad safety laws would jeopardize uniformity, then it
would have declared the elimination rather than the saving of
such claims. And the Federal Railroad Administration – the
agency responsible for implementing the LIA as well as the
Federal Railroad Safety Act – has confirmed that state-law




                              21
claims can be used to enforce a federal standard of care. See
Passenger Equipment Safety Standards; Front End Strength of
Cab Cars and Multiple-Unit Locomotives; Final Rule, 75 Fed.
Reg. 1180, 1208 (Jan. 8, 2010) (“[The Federal Railroad
Administration] was careful to convey that Federal
preemption under [the Federal Railroad Safety Act] applied to
standards of care under State law – as opposed to claims
(causes of action) under State law. They are different.”). It is
also noteworthy that state courts already interpret the LIA
because FELA claims based on violations of the LIA that are
filed in state courts cannot be removed to federal court.16 28
U.S.C. § 1445(a).



       16
           That fact alone negates the dissent’s contention that
allowing state-law remedies for LIA violations poses a
significant threat to national uniformity, Dissent slip op. at 4-
6. Because state courts are already interpreting the LIA, any
danger to uniformity, to the extent it can be called a danger, is
already present. There is always a possibility that, at the
margins, state courts will differ in their interpretations of the
federal standard of care, but the Supreme Court has not
expressed concern with that possibility and neither do we.
Further, the hypothetical posed by the dissent – in which a
person struck by a train could sue a railroad under strict
liability in one state but not in another, Dissent slip op. at 4-5
– does not address differing standards of care. It only
concerns whether a wanderer could sue under the LIA. It
does not explain how differing state laws that affect who may
sue would result in differing substantive standards directed at
railroads.




                               22
       In light of the foregoing, the District Court erred in
holding that Canadian Pacific’s indemnification and
contribution claims are preempted.

       B.     Preemption of Canadian Pacific’s Breach-of-
              Contract Claims

        Canadian Pacific’s breach-of-contract claims also
should have survived the motions to dismiss. As noted
earlier, the railroad argues that both Knoedler and Durham
breached their contractual obligations to supply GE with LIA-
compliant seats. Claiming the status of a third-party
beneficiary to those contracts, Canadian Pacific seeks relief
for those breaches.

       Much of the analysis described above with respect to
the indemnification and contribution claims also applies to
the breach-of-contract claims. Just as there is room for state
tort remedies, there is room for state contract remedies
associated with the federal standards embodied in the LIA.
The breach-of-contract claims do not require Knoedler or
Durham to comply with a state duty or standard of care.
Instead, Canadian Pacific seeks to enforce contractual
provisions that call for compliance with federal law.
Enforcing the contracts would therefore not detrimentally
affect national uniformity of railroad operating standards.
Uniformity is to be expected because it is in the interest of the
contracting parties. Having one set of national regulations to
follow is important both to railroads and to equipment
suppliers for the obvious reason that neither wants to deal
with a multiplicity of possibly conflicting state standards.
Therefore, in delineating their duties under a contract, the
railroads and their suppliers will be fully motivated to ensure




                               23
that all provisions regarding equipment design and
manufacture are based on a uniform federal standard of care.

       But even if the LIA did preempt Canadian Pacific’s
indemnification and contribution claims, it would not follow
that the LIA preempts the breach-of-contract claims, because
breach-of-contract claims involve voluntarily assumed duties
as opposed to duties imposed by state law.17 “[W]hen a party
to a contract voluntarily assumes an obligation to proceed
under certain state laws, traditional preemption doctrine does
not apply to shield a party from liability for breach of that

       17
            Knoedler argues that Canadian Pacific is
impermissibly attempting to circumvent the absence of a
private right of action in the LIA by restating its tort claims as
breach-of-contract claims. Knoedler relies on Astra USA, Inc.
v. Santa Clara County, in which the Supreme Court held that
plaintiffs could not sue on a form contract implementing a
statute when the statute itself provided no private right of
action. 131 S. Ct. 1342, 1345 (2011) (applying § 340B of the
Public Health Services Act, which imposes ceilings on prices
drug manufacturers may charge for medications sold to
healthcare facilities). But, as discussed above, the Supreme
Court in Crane allowed enforcement of the SAAs through
state-law claims even when there was no private right of
action. See supra pp. 10-12 (discussing Crane and the
SAAs). Furthermore, Astra is distinguishable as it involved
“form agreements” that “simply incorporate[d] statutory
obligations and record[ed] the manufacturers’ agreement to
abide by them” but “contain[ed] no negotiable terms.” Id. at
1348. Here, the contracts at issue involved negotiated duties
voluntarily assumed by the parties that, Canadian Pacific
alleges, explicitly required LIA-compliant seats.




                               24
agreement.” Epps v. JP Morgan Chase Bank, N.A., 675 F.3d
315, 326 (4th Cir. 2012). There is a salutary “you’ve made
your own bed, now lie in it” quality to several cases from the
Supreme Court that emphasize the importance of voluntarily
assumed contractual obligations. See Am. Airlines, Inc. v.
Wolens, 513 U.S. 219, 228 (1995) (“We do not read the
[Airline Deregulation Act]’s preemption clause … to shelter
airlines from suits alleging no violation of state-imposed
obligations, but seeking recovery solely for the airline’s
alleged breach of its own, self-imposed undertakings.”);
Cipollone, 505 U.S. at 526 (plurality opinion) (holding that a
breach-of-warranty claim was not preempted by the Federal
Cigarette Labeling and Advertising Act because “a common-
law remedy for a contractual commitment voluntarily
undertaken should not be regarded as a requirement …
imposed under State law” (alteration in original) (internal
quotation marks omitted)); see also Nw., Inc. v. Ginsberg,
134 S. Ct. 1422, 1432-33 (2014) (holding that the Airline
Deregulation Act preempted claims alleging breach of an
implied covenant because, under the controlling state law,
parties could not contract out of such covenants – and thus
they were “regarded as state-imposed” – but noting that if a
state permitted parties to voluntarily surrender protections
from covenants, then those claims would “escape pre-
emption”).

       That some of those cases involved express preemption
as opposed to field preemption does not change the analysis.
The same principle applies, regardless of the breadth of
preemption: duties voluntarily undertaken cannot be
considered as “state imposed.” Because Kurns concluded
only that “state common-law duties and standards of care” are
preempted by the LIA, Kurns, 132 S. Ct. at 1269, – and not




                             25
voluntary contractual duties – even the broad field
preemption of the LIA does not rule out Canadian Pacific’s
breach-of-contract claims.18

       To hold that the LIA preempts all breach-of-contract
claims would allow, and perhaps encourage, manufacturers to
make grand contractual promises to obtain a deal and then
breach their duties with impunity. Knoedler’s and Durham’s
only response to the perverse incentives inherent in their
arguments is a shoulder shrug. “Let the market sort things
out,” they say. As counsel for Durham put it at oral
argument, “the people who are being put upon by this lack of
remedy are not your average consumers; they are railroads, in
this case a huge railroad, with incredible economic power to
buy or not buy from various people.” (Oral Arg. at 23:25-
43.) But even the rich and powerful are entitled to the rule of
law, and we see no reason to believe that Congress meant for
Darwinian attrition to replace legal remedies.

      18
           The District Court erroneously relied on cases
holding that breach-of-contract claims were preempted under
the Carmack Amendment. The Carmack Amendment is a
comprehensive federal regulatory scheme pertaining to
interstate carrier liability for loss or damage to shipments.
Certain Underwriters at Interest at Lloyds of London v.
United Parcel Serv. of Am., Inc., 762 F.3d 332, 334 (3d Cir.
2014) (“Congress first comprehensively addressed interstate
carrier liability in the Carmack Amendment … .”). Those
cases are readily distinguishable because, unlike the LIA, the
Carmack Amendment provides a federal private right of
action. Id. (“Shippers may bring a federal private cause of
action directly under the Carmack Amendment against a
carrier for damages.”).




                              26
V.    CONCLUSION

       Canadian Pacific’s state law claims of indemnification
and contribution based on the LIA are not preempted, nor are
its breach-of-contract claims. We will therefore vacate the
District Court’s Orders dismissing the First and Second
Amended Complaints and remand for further proceedings
consistent with this opinion.




                             27
DELAWARE & HUDSON RAILWAY COMPANY, INC., et al. v.
KNOEDLER MANUFACTURERS, INC., et al., No. 13-3678

HARDIMAN, Circuit Judge, dissenting.

       This is a field preemption case arising under the
Locomotive Inspection Act (LIA). Just two years ago the
Supreme Court had occasion to consider and clarify the LIA’s
preemptive scope in Kurns v. Railroad Friction Products Corp.,
132 S. Ct. 1261 (2012). There, the Court held that state common
law tort claims related to railroad safety are preempted by the
LIA. This appeal requires us to decide whether the LIA’s broad
preemptive scope extends to state law tort and breach of contract
claims based on federal standards. The question defies an easy
answer, but on balance, I read Kurns to indicate that the LIA
preempts all state law causes of action, even those based on
federal standards of care. Accordingly, I respectfully dissent.
                                I
        Our decision turns largely on how we read Kurns, which
teaches that the LIA preempts a large swath of state law claims
related to railroad safety (all those based on duties derived from
state common law). Should we, in this case, take the next logical
step on the path Kurns has laid out and hold that the LIA
preempts all state law claims related to railroad safety,
regardless of whether those claims are based on state- or federal-
law duties? Or should we depart from that path to carve out an
exception for state common law claims based on federal
standards?
       I would take the next logical step and hold that the LIA
preempts all state law claims in the field of railroad safety,
including those at issue in this appeal, for three reasons. First,
doing so is consistent with the LIA’s simple but important
purpose—protecting railroad workers. Second, neither Kurns
nor the case upon which it principally relies, Napier v. Atlantic
Coast Line Railroad, 272 U.S. 605 (1926)), suggests that there
is an exception to the LIA’s otherwise broad preemptive scope
for state law causes of action based on federal standards of care.
Finally, the majority’s decision to the contrary strips Kurns of
much of its practical significance while simultaneously
threatening national uniformity in railroad law.
                                A
        Congressional purpose suggests that state law causes of
action based on federal locomotive safety standards are within
the field preempted by the LIA. “[T]he prime purpose of the
[LIA] was the protection of railroad employees and perhaps also
of passengers and the public at large from injury due to
industrial accident.” Urie v. Thompson, 337 U.S. 163, 191
(1949) (internal citation omitted). And whatever ancillary
purposes the LIA is intended to serve, one thing is crystal clear:
protecting railroads from lawsuits isn’t one of them. In fact,
Congress intended to protect employees and other vulnerable
parties from railroads and their potentially subpar safety
measures. Thus, unlike my colleagues, see Maj. Typescript at
17, I’m neither surprised nor troubled by the notion that the LIA
would leave railroads like Canadian Pacific with no remedy for
injuries such as those alleged here. And the absence of a remedy
in no way reduces the incentives railroads have to ensure that
their locomotives “are in proper condition and safe to operate,”
and to closely inspect locomotive parts (like the defective seats
that led to this case) for possible defects, see 49 U.S.C.
§ 20701—in fact, it incentivizes railroads to be even more
careful when inspecting their locomotives for safety hazards,
since they cannot pass on LIA liability to others. That such




                                2
increased safety would come at the expense of highly regulated
railroads is no surprise, and should not influence our decision.1
       In addition, Congress knew when it enacted the LIA
(originally known as the Boiler Inspection Act) that the Federal
Employers’ Liability Act (FELA), 45 U.S.C. § 51 et seq.,
provided a remedy for employees but not for railroads.2 For over
90 years, Congress has not provided railroads a remedy for
injuries they suffer as a result of LIA violations. That failure is
unsurprising, consistent as it is with the LIA’s purpose—a
purpose which is furthered by the role of FELA in providing a
remedy to injured railroad workers.
       Second, Kurns and Napier in no way suggest that the
LIA’s broad preemptive scope includes a tacit exception for
railroads to recoup FELA damages in state law causes of action
based on federal standards of care. Instead, Napier held merely
that the LIA “was intended to occupy the field,” citing the
“broad scope of the authority conferred upon the [regulatory
body charged with promulgating regulations under the LIA]” as
evidence of that preemption. 272 U.S. at 613. And Kurns
teaches that there is “no exception” in that preempted field for

       1
          The majority speculates that “[i]f Congress intended
to foreclose all legal remedies available to railroad companies
seeking to recoup FELA damages, it likely would have said so
plainly.” Maj. Typescript at 19 n.14. In light of the LIA’s
purpose, it is even more likely that if Congress did not intend
for railroads to shoulder the entire LIA regulatory burden, it
would have said so plainly.
        2
          The Boiler Inspection Act, which was passed after
FELA, worked so closely with FELA that the Court called it
“substantively if not in form [an] amendment[] to the Federal
Employers’ Liability Act.” Urie, 337 U.S. at 189.



                                3
state standards of care. 132 S. Ct. at 1269. Neither case provides
any reason to believe that a remedy lies outside of FELA for
non-employees injured as a result of LIA violations.
       Finally, I disagree with my colleagues that the primary
goal of preemption—national uniformity—would not be
undermined by allowing state law causes of action using
standards of care derived from the LIA. See Maj. Typescript at
21–22. Instead, I am convinced that allowing such causes of
action would threaten uniformity significantly while at the same
time undercutting the Court’s decision in Kurns. To understand
why, consider the text of the LIA, under which locomotives and
locomotive parts and appurtenances must be “in proper
condition and safe to operate without unnecessary danger of
personal injury.” 49 U.S.C. § 20701(1). These requirements are
amorphous, to say the least. What is “proper condition?” What is
“safe to operate?” Whose “unnecessary danger of personal
injury” is to be considered? The LIA does not answer these
questions, and it would seem obvious that hundreds of state and
federal courts will answer them in multifarious ways. And in
doing so, they will undermine uniformity in the national
regulatory scheme.
         A simple example illustrates the disparate results today’s
decision will propagate: A person crossing a track is struck by a
train through no fault of the train operator. No workers or
passengers on the train are injured. The train is equipped with
industry-standard braking equipment, but the injured person
claims that a better brake design could and should have been
used. The railroad is sued under a strict liability theory citing the
LIA’s “proper condition and safe to operate without unnecessary
danger of personal injury” language as the applicable standard
that the railroad failed to meet. But does the injured person even
have standing to sue under the LIA? A court deciding this



                                 4
question would turn to state law to determine whether only a
worker or passenger of a railroad could sue under such a theory,
and state law will often differ on this question.3 Answering that
question will affect the court’s interpretation of the LIA’s
substantive standard of care, as it directly pertains to whose
“unnecessary danger of personal injury” is relevant under the
federal standard. Railroads will be subject to different rules in
various states, and will have to adapt their equipment and
policies to each state’s decision regarding which parties could
sue under the LIA. This is an untenable result.
       These are the types of legal interpretations that state
courts make every day in evaluating causes of action in various
factual contexts. Negligence, for example, is a failure to
“exercise reasonable care under all the circumstances.”
Restatement (Third) of Torts: Physical & Emotional Harm § 3
(2010). This standard, like the standard of care in the LIA, is

       3
         Some states follow the Third Restatement of Torts,
which “does not limit a strict liability cause of action to the
‘user or consumer,’ and broadly permits any person harmed
by a defective product to recover in strict liability.” Berrier v.
Simplicity Mfg., Inc. 563 F.3d 38, 54 (3d Cir. 2009) (noting
that Wisconsin, California, Mississippi, Arizona, Missouri,
Michigan, Iowa, Alabama, Utah, and Vermont do so). But
other states have declined to adopt the Third Restatement, and
might limit recovery only to a consumer or user of the
product—in this case, a worker or passenger of the train. See,
e.g., Tincher v. Omega Flex, Inc., 2014 WL 6474923, at *62
(Pa. Nov. 19, 2014) (declining to adopt the Third
Restatement’s approach to strict liability, despite the Third
Circuit’s prediction that it would do so in Berrier, 563 F.3d at
53).



                                5
general by design. To ascertain its meaning in a given context,
trial courts consider a variety of factors, not the least of which
may include “countervailing principle[s] or polic[ies].” Id. at
§ 7. State courts must and will construe the LIA’s required
duties just as they normally would construe standards of care in
other state law contexts—that is, by considering ordinary state
policy concerns.
       In doing so, state courts will necessarily inject state law
policies into what is, according to the majority, an LIA-derived
duty. This is exactly what Kurns prohibits. Kurns’s ban on state
law standards of care is uncontroverted, yet actions based on
those standards will implicitly be permitted under our decision
today, which strips Kurns of much (if not all) of its effect. It
does so because the LIA’s federal standard of care is so broad
that most state law claimants who would otherwise be barred by
Kurns will be able to avoid that bar by cloaking their state law
claims in the garb of the LIA. Kurns should not be gutted in this
manner.4
       In sum, because the LIA protects workers and not
railroads, because the Supreme Court has not so much as hinted
at an exception for federal standards of care in the LIA’s broad

       4
         The majority correctly notes that state courts already
interpret the LIA through FELA actions filed in state court.
But that fact is immaterial to the question presented in this
appeal because we all agree that Congress, by enacting FELA,
has eschewed national uniformity in favor of providing a
remedy to injured railroad workers who sue their employers.
Kurns demonstrates that this policy-based exception to
national uniformity does not extend even to cases in which
railroad workers sue non-employers—let alone cases, like this
one, in which railroads sue under the LIA.



                                6
preemptive scope, and because doing so would seriously
undermine national uniformity, I would hold that the LIA
preempts state law causes action falling within the preempted
field, even when they are based on federal standards of care.
                                 II
       After giving short shrift to Kurns, a recent Supreme
Court decision that arises under the LIA, the majority relies on
older cases that arise under other federal laws. See Maj.
Typescript at 12–16. Although these decisions have some
relevance to this appeal, they involve laws that differ in
meaningful ways from the LIA. Perhaps even more significant is
the fact that they were decided before Kurns, so they are devoid
of the Court’s reasoning in its most recent exposition of LIA
preemption.
        First, the majority leans on Abdullah v. American
Airlines, Inc., 181 F.3d 363 (3d Cir. 1999), and Silkwood v.
Kerr-McGee Corp., 464 U.S. 238 (1984), for the proposition
that “in other statutory contexts . . . violations of federal law can
be redressed through state common-law claims.” Maj.
Typescript at 12. My colleagues are correct that in some
contexts the Supreme Court has allowed violations of federal
law to be redressed through state law causes of action. But there
are critical differences between those contexts and the LIA, and
Abdullah evinces a prominent difference. The law interpreted in
that case, the Federal Aviation Act (FAA), preempted the field
of aviation safety but also included a savings clause that
explicitly preserved “other remedies provided by law,” including
state law claims. Abdullah, 181 F.3d at 374–75. The LIA
doesn’t have a savings clause. The majority suggests that the
savings clause is unimportant because Abdullah “stands for the
larger premise . . . that even when Congress has occupied a




                                 7
particular field, state-law claims to remedy federal violations are
not necessarily preempted.” Maj. Typescript at 12–13 n.7. But if
state law claims were permissible in any event, why did the
FAA include a savings clause? Because the savings clause does
no work under this interpretation, the majority violates the canon
against superfluity, see Clark v. Rameker, 134 S. Ct. 2242, 2248
(2014); United States v. Menasche, 348 U.S. 528, 538–39
(1955) (citing Inhabitants of Montclair Twp. v. Ramsdell, 107
U.S. 147, 152 (1883)). The better view is that the LIA’s lack of
a savings clause is a meaningful difference between it and the
FAA.
       Silkwood involves the Atomic Energy Act, a federal law
that, unlike the LIA, is not accompanied by a comprehensive
federal remedial scheme. 464 U.S. at 241. As the majority
recognizes, even in the absence of a savings clause in the
Atomic Energy Act, Congress indicated that it assumed state tort
remedies would remain available within the preempted field. As
the Court noted, “there [was] no indication that Congress even
seriously considered precluding the use of such remedies” in
passing the law. Id. at 251. In contrast, the LIA evidences no
desire by Congress to permit state law remedies to remain
available within the locomotive safety field. In fact, the
existence of a federal remedial statute (FELA) is a strong
indication that those remedies did not remain available. FELA
provides a remedy for LIA violations just as state law claims did
for the Atomic Energy Act. If there were a federal remedial
statute like FELA for the Atomic Energy Act, the Silkwood
Court would have had no reason to find it “difficult to believe
that Congress would, without comment, remove all means of
judicial recourse for those injured by illegal conduct.” Silkwood,
464 U.S. at 251.




                                8
        The Silkwood Court’s assumption that Congress would
not leave persons injured by violations of the Atomic Energy
Act without a remedy is consistent with that Act’s purpose of
protecting the public from an emerging and potentially
dangerous form of energy while at the same time promoting the
development of the atomic energy industry. See 42 U.S.C.
§ 2012. It would make little sense to pass a law “in order to
protect the public,” while depriving the public of a way to
enforce that protection. Id. § 2012(i). Conversely, it makes
perfect sense that Congress did not intend to permit private
actions in the particular context presented by this case: a railroad
attempting to recover under the LIA. Unlike the Silkwood
plaintiff (the administrator of the estate of an employee of an
atomic energy company), a railroad like Canadian Pacific is
outside the protective scope of the LIA. “[T]he prime purpose of
the [LIA] was the protection of railroad employees . . . .” Urie,
337 U.S. at 191. FELA already provides a remedy for railroad
employees who suffer injury as a result of LIA violations; thus,
Congress could—and, in my view, did—foreclose state law
causes of action based on LIA violations with nary a concern
about leaving railroad workers without a remedy.
        The cases dealing with the Safety Appliance Acts
(Appliance Acts)—Crane v. Cedar Rapids & Iowa City Railway
Co., 395 U.S. 164 (1969); Breisch v. Central Railroad of New
Jersey, 312 U.S. 484 (1941); and Tipton v. Atchison, Tulsa &
Santa Fe Railway Co., 298 U.S. 141 (1936)—are more germane
to this appeal because there are some superficial similarities
between the Appliance Acts and the LIA. As the majority points
out, both the Appliance Acts and the LIA regulate locomotive
equipment, and neither provides for private enforcement—
instead, injured employees must seek a remedy under FELA,
and there is no statutory remedy for non-employees. Maj.




                                 9
Typescript at 15. And, as with the LIA, the Appliance Acts
preempt their field of regulation and Congress gave no explicit
indication that state law causes of action should remain available
under them, yet nonemployees may seek redress for violations of
the Appliance Acts via common law causes of action. Crane,
395 U.S. at 166.
        But rote application of these precedents to this appeal
overlooks the importance of the Supreme Court’s more recent
and more relevant decision in Kurns. The effect of the
Appliance Acts cases on the LIA is at least questionable after
Kurns. Crane, decided 45 years ago, held that the defense of
contributory negligence in an Appliance Act suit was not
preempted. 395 U.S. at 167. Contributory negligence, a standard
feature of common law negligence actions, is defined by state
common law. Yet Kurns prohibits the use of a state law standard
of care in a case related to railroad safety. Kurns, 132 S. Ct. at
1269. Given the Court’s clear statement that state law has no
place in defining duties in the field of railroad safety, I think it
unlikely the Court would permit a state standard of care to be
used, as Crane allows, as part of an affirmative defense. Id.
(noting that the “categorical conclusion” that the LIA preempts
the field of locomotive safety “admits of no exception for state
common-law duties and standards of care”). In my view, then, if
Crane retains vitality after Kurns, it must be read to apply only
to the Appliance Acts, and not to the LIA.
        Breisch and Tipton, the other Appliance Acts cases cited
by the majority, raise a similar concern. Both cases recognize
that the Appliance Acts “leave the genesis and regulation of
[rights of action based on breach of the Appliance Acts] to the
law of the states.” Tipton, 298 U.S. at 148; accord Breisch, 312
U.S. at 486. As Tipton noted, the Appliance Acts created an
“absolute duty” for employers—if employers fall below that



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statutory standard of care, they are negligent under state law.
298 U.S. at 146. But under Tipton, state law standards of care
may still play a significant (and, under Kurns, prohibited) role:
although a railroad’s violation of the Appliance Acts means that
it is negligent, a railroad’s compliance with the Appliance Acts
does not mean that it is not negligent. See Restatement (Third)
of Torts: Physical & Emotional Harm § 16 (2010)
(“[C]ompliance with a pertinent statute, while evidence of
nonnegligence, does not preclude a finding that the actor is
negligent . . . for failing to adopt precautions in addition to those
mandated by the statute.”). Thus, under Tipton and Breisch, a
particularly safety-conscious state could hold railroads to a more
stringent standard of care than that mandated in the Appliance
Acts—a “potent method of governing conduct and controlling
policy,” that Kurns plainly precludes. Kurns, 132 S. Ct. at 1269
(quoting San Diego Bldg. Trades Council v. Garmon, 359 U.S.
236, 247 (1959)). Here again, although the Appliance Acts and
the LIA share some traits, Kurns illustrates that cases construing
the Appliance Acts do not necessarily apply in the LIA context.
        Aside from the lack of a case analogous to Kurns that
arises under the Appliance Acts, those Acts differ from the LIA
in another critical way. As the majority acknowledges, the
Appliance Acts contain some very specific requirements for
railroads—“certain safety equipment [must] be used on railroad
carriers, such as automatic couplers, efficient hand brakes,
secure ladders with handholds or grab irons, and power brakes
sufficient to stop the train.” Maj. Typescript at 14 n.9 (citing 49
U.S.C. § 20302). The LIA, by contrast, merely requires that
trains and their constituent parts be “in proper condition and safe
to operate without unnecessary danger of personal injury.” The
Appliance Acts’ veritable laundry list of requirements allows a
court to decide a case based on them without reference to




                                 11
common law, and with little interpretive discretion—either a
train is equipped with the mandated parts, or it is not. The LIA’s
broad scope, as I noted in Part I, offers no such clear guidance,
and will require courts to give meaning to its general
instructions. State courts will do so by filling in the gaps with
multifarious state policies and rules, contrary to the teaching of
Kurns.
                               III
       The LIA’s preemptive scope is broad—perhaps unusually
broad, given recent Supreme Court preemption cases. See
Kurns, 132 S. Ct. at 1270 (Kagan, J., concurring) (“Viewed
through the lens of modern preemption law, Napier is an
anachronism.”). But we must follow the law as it specifically
pertains to the LIA, and Kurns is the most germane
pronouncement on the subject. I recognize that my view would
leave Canadian Pacific, and other injured non-employees,
without a remedy for LIA violations. “But it is for Congress to
amend the statute to prevent such injustice. It is not permitted
the Court to rewrite the statute.” Crane, 395 U.S. at 167. The
absence of a remedy under the LIA may be a tough pill for
railroads to swallow, but it is the one I believe Congress
prescribed. With respect, I dissent.




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