Full opinion text
OPINION MacBRIDE, Chief Judge. The question presently before this court is whether federal or state law provides the rule of decision governing the application of contributory or comparative negligence standards to this action under the Federal Tort Claims Act, 28 U.S.C. §§ 1346(b), 2671 et seq. The factual background in which the question arises can be stated briefly. On April 28,1973,18 DODX boxcars owned by the United States and laden with bombs being transported from Nevada to Port Chicago, California, by Southern Pacific Transportation Company (Southern Pacific) under contract with the Department of the Navy, exploded in the Antelope trainyard of Southern Pacific near Roseville, California. The explosions caused major damage to the trainyard and the surrounding area. As a result, Southern Pacific instituted this action under the Federal Tort Claims Act (FTCA) to recover, inter alia, for damage to the trainyard, railcars and lading in the railcars, loss of freight revenues, loss of use of Southern Pacific property and capital, and sums paid in settlement of third-party claims. All third-party suits arising from the explosions have been settled, so that the only claims remaining are the primary action by Southern Pacific for its damages and the counterclaim by the United States for loss of the boxcars and bombs. The FTCA provides a statutory choice of law rule governing this action. Section 1346(b) provides: the district courts . . . shall have exclusive jurisdiction of civil actions on claims against the United States, for money damages, ... for injury or loss of property, or personal injury or death caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment, under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred. 28 U.S.C. § 1346(b). As the Supreme Court held in Richards v. United States, 369 U.S. 1, 82 S.Ct. 585, 7 L.Ed.2d 492 (1962), this section requires application of the whole law, including the choice of law rules, of the place where the act or omission occurred. In the usual case, the negligent act or omission and the resulting injury occur in a single state, and there is generally no dispute as to the applicable law. In this instance, however, negligent acts and omissions are alleged to have occurred in Nevada and California, and, to a significantly lesser extent, in other states, so that the selection of the state whose whole law is to apply is far more complicated. Superimposed on the selection of the applicable state law is the question whether federal law preempts some or all of the issues presented. Section 2674 of the FTCA provides in part that the United States is to be liable “in the same manner and to the same extent as a private individual under like circumstances.” If federal law were deemed to preempt state law in the context of a suit between private parties arising from an explosion in a railcar, then the argument is that federal law should also preempt otherwise applicable state law in this instance in order that the directive of the Act, that the United States be liable in the same manner and to the same extent as a private person in like circumstances, may be fulfilled. Southern Pacific contends that federal law preempts state law in this instance because, it states: Numerous aspects of the Roseville interstate shipment were governed by federal interstate commerce statutes and regulations. The Interstate Commerce Act regulates, inter alia, the common carrier’s duty to furnish transportation and establish through routes (49 U.S.C. § 1(4)), the carrier’s duty to establish just and reasonable rates (49 U.S.C. § 1(5)), the carrier’s duty to make reasonable classifications of property for transportation with reference to which rates and tariffs may be prescribed (49 U.S.C. § 1(6)), the carrier’s duty to furnish car service (49 U.S.C. § 1(11)), its duty to establish rules and regulations for car service (49 U.S.C. § 1(13), (14)), and the carrier’s duty to refrain from discrimination in rates, interchange, and facilities (49 U.S.C. § 3). The Act prescribes the consequences of a carrier’s violating regulations (49 U.S.C. § 10) and provides that the Commission is empowered to determine the lawfulness of carrier’s rates and, on its own initiative, establish reasonable through routes and joint practices (49 U.S.C. § 15). The Act imposes liability on carriers for loss of freight and also prescribes limitations of liability (49 U.S.C. §§ 20(11), 101). The Act extensively regulates the form, content, terms, and conditions of bills of lading (49 U.S.C. §§ 81-124), . . . . Finally, the Act regulates safety appliances (49 U.S.C. § 26) and regulates the transportation of hazardous material (49 U.S.C. §§ 1801-1812). The regulations of the Interstate Commerce Commission and its offices regulate innumerable details of an interstate explosives shipment. The hazardous materials regulations (49 CFR §§ 102, 107, 170 et seq.) govern rulemaking procedures and petitions for . rulemaking, compliance orders and penalties, labeling, packaging, placarding, preparation of explosives for shipment, handling, loading, and inspection requirements. Southern Pacific’s brief, filed September 18, 1978, at 7-8. Certain of the statutes and regulations described, along with other federal laws and regulations, undeniably governed significant aspects of the relationship between Southern Pacific as common carrier and the United States as shipper. Southern Pacific contends that, since the rights and duties of the parties had a federal source, federal law must govern all phases of this litigation. The theory, briefly stated, is that the pervasive federal regulatory program governing interstate shipments preempts state law that might otherwise apply and that, therefore, federal law provides the rule of decision applicable to this case. In the absence of specific federal legislation governing an aspect of the case, Southern Pacific contends that this court must adopt a rule of federal common law. In adopting a federal rule, the court may either incorporate state law as the operative federal rule or it may adopt a uniform federal rule; in either instance, the rule would be a federal one. Although Southern Pacific takes the general position that federal law must govern all phases of this litigation because of preemption, the briefing presented to the court is directed primarily to the single specific local rule which Southern Pacific particularly asks this court to find preempted, namely, the Nevada contributory negligence doctrine. While this court will examine , the preemption arguments of the parties in the context of the entire case, the court is specifically concerned with the contributory negligence/comparative negligence issue. This decision is final only with respect to that issue. It may be that the conclusions should differ as to other issues not raised and briefed; this decision does not foreclose that possibility. The approach taken by Southern Pacific employs the following major premises. First, the rights and duties of the parties have a federal source and are substantially related to a federal regulatory program. Second, given this federal source, the Supremacy Clause and the doctrine of federal preemption require that this court apply a federal rule of decision. Next, the federal rule of decision should displace state law with a uniform federal common law rule if the state law conflicts with or frustrates federal policy. Fourth, under this guideline, Nevada’s contributory negligence rule conflicts with and defeats the purposes of the federal regulatory program governing interstate shipments by rail. Fifth, the FTCA' requires that the liability of the United States be determined according to federal law if a private individual’s liability would be so determined. Because of the conflict between Nevada’s rule and federal policy, which Southern Pacific contends is to be derived from federal railroad regulatory statutes, a private individual’s liability would be determined according to federal law. Finally, Southern Pacific urges that the appropriate federal common law in this instance would be a rule of comparative negligence, the rule that prevails in California. The United States responds to these premises with the following arguments. First, the degree of federal interest necessary to trigger federal preemption does not exist in this instance. In support, it is urged that certain of the provisions of federal law cited by Southern Pacific as creating a federal regulatory scheme governing interstate rail shipments are (1) irrelevant to the issues before this court, (2) inapposite because they had not been enacted as of the date of the explosions, or (3) expressly intended not to preempt state law. Second, assuming arguendo that federal common law does govern the question of liability here because of preemption, the federal rule to be applied would be a rule of contributory negligence, and Nevada’s rule is consistent with the federal scheme of regulation. Finally, the FTCA precludes the application of the federal preemption doctrine to impose a federal common law rule to this case. Consideration of these arguments is complicated because, to a large extent, the arguments present a seamless web, each dependent upon an understanding of the others. This court will first set forth the general considerations affecting the law to be applied in the federal courts and the promulgation of a federal common law rule. After that examination, it is possible to consider the interrelation between federal common law and the FTCA and to resolve the United States’ argument that the FTCA precludes the application of federal common law. Thereafter, this court will determine whether, in the circumstances of the instant action, a federal common law of tort liability should govern or whether the issue of comparative or contributory negligence should be left for resolution by state law. (1) Introductory Comments on the Law to be Applied in the Federal Courts The law to be applied in the federal courts varies depending on the nature of the particular case and of the specific issues in the case. There are three general categories into which that law may be subdivided: (1) state law operative of its own force, (2) state law incorporated or adopted into federal law as the federal rule of decision, and (3) federal law uniform throughout the nation. The selection of the appropriate law depends on the circumstances of each case, not on the nature of the court’s jurisdiction or on other clear guidelines. For example, in the usual diversity jurisdiction case, state law will govern of its own force; the federal court sits, in effect, as another state court. This result obtains under the Supreme Court’s decision in Erie R.R. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938), and the Rules of Decision Act, 28 U.S.C. § 1652, which provides: The laws of the several states, except where the Constitution or treaties of the United States or Acts of Congress otherwise require or provide, shall be regarded as rules of decision in civil actions in the courts of the United States, in cases where they apply. Despite this general rule, state law will not apply of its own force in a diversity case when the particular issue is one of federal law. In such a case, the Constitution, federal statutes, federal regulations, and/or federal common law “otherwise require,” and state law cannot apply of its own force. Cf. United States v. Little Lake Misere Land Co., 412 U.S. 580, 593, 93 S.Ct. 2389, 2397, 37 L.Ed.2d 187, 197 (1973). The fact that federal law will govern in such instances does not necessarily indicate that the law will be a uniform federal rule throughout the nation. Instead, the federal rule of decision can derive from state law. In other words, once it has been determined that the matter is governed by federal law, there is a subsidiary question whether the content of that federal law is derived from an incorporation of state law as the federal rule of decision or is declared to be a uniform federal rule arising, for example, from a statutory or constitutional mandate. In contrast to the diversity jurisdiction situation, the assumption in an action within the federal question jurisdiction of the district courts is that federal law will apply. As with diversity cases, this general assumption is subject to certain exceptions. For example, certain federal statutes which create a right of action have been interpreted to require that state law apply of its own force to that right of action. One such instance is 16 U.S.C. § 457, which provides: In the case of the death of any person by the neglect or wrongful act of another within a national park or other place subject to the exclusive jurisdiction of the United States, within the exterior boundaries of any State, such right of action shall exist as though the place were under the jurisdiction of the State within whose exterior boundaries such place may be; and in any action brought to recover on account of injuries sustained in any such place the rights of the parties shall be governed by the laws of the State within the exterior boundaries of which it may be. Thus, one court has held that this section should be construed narrowly so as to provide no reference to state law, as a matter of federal law, for deciding issues of liability, nor to contain any implication as to applicable choice of law rules. The statute, thus construed, simply creates the right to bring a wrongful death action whenever the law of the state surrounding the enclave permits; refers to state law only to determine if the action can be brought and who has the right to bring it, and leaves the federal court to apply state law directly, i. e., not as federal law, on issues of liability. Quadrini v. Sikorsky Aircraft Division, 425 F.Supp. 81, 87 (D.Conn.1977). As so interpreted, section 457 creates a federal right of action in which state law governs, of its own force, on questions of liability. The United States contends, in the instant action, that the FTCA provisions have the same effect as the provisions of section 457 so that state law applies of its own force in FTCA actions. Discussion of this contention is deferred. Federal statutes directing that state law shall apply of its own force are relatively unusual. More commonly, when state law is applied in a federal question case, the state law is deemed to have been incorporated into federal law. Under these circumstances, a federal rule of decision governs, but the content of that federal rule will derive from state law sources. An example of this situation appears in Reconstruction Finance Corp. v. County of Beaver, 328 U.S. 204, 66 S.Ct. 992, 90 L.Ed. 1172 (1946). Congress had provided in the Reconstruction Finance Corporation Act that “any real property” of the agency “shall be subject” to taxation by the spates and their political subdivisions “ ‘to the same extent according to its value as other real property is taxed.’ ” Id. at 206, 66 S.Ct. at 994, 90 L.Ed. at 1174. As interpreted by the Pennsylvania Supreme Court, certain machinery was subject to the state tax on real property, and the Reconstruction Finance Corporation appealed, contending that a federal definition of “real property” excluded the machinery. The Court declared: The 1941 Act does not itself define real property. Nor do the legislative reports or other relevant data provide any single decisive piece of evidence as to Congressional intent. Obviously, it could have intended either, as the government argues, that content be given to the term “real property” as a matter of federal law, under authoritative decisions of this Court, or, as the county contends, that the meaning of the term should be its meaning under local tax laws so long as those tax laws were not designed to discriminate against the government. Congress normally intends that its laws shall operate uniformly throughout the nation so that the federal program will remain unimpaired. . . . But Congress in permitting local taxation of the real property, made it impossible to apply the law with uniform tax consequences in each state and locality. . . . We think the Congressional purpose can best be accomplished by application of settled state rules as to what constitutes "real property” so long as it is plain, as it is here, that the state rules do not effect a discrimination against the government, or patently run counter to the terms of the Act. Id. at 208, 66 S.Ct. at 995, 90 L.Ed. at 1175-76. In the Court’s view, the terms of the Act evidenced congressional intent to integrate the federal permission to tax “with established local tax assessment and collection machinery.” Id. at 210, 66 S.Ct. at 996, 90 L.Ed. at 1176. Thus, the content of the definition of “real property” was to be found in state law as incorporated into federal law; the definition itself as so incorporated was a federal definition, presenting a federal question. In still other instances, a uniform federal rule governs. As noted by the Supreme Court in the Reconstruction Finance case, Congress usually intends that its statutes are to be uniformly applied throughout the nation. Id. In such circumstances, federal law provides the rule of decision, and that rule is not dependent on or derived by incorporation of state law. Uniform federal law is not restricted to constitutional or statutory law; federal common law rules may likewise be uniform throughout the nation or, conversely, be derived by incorporation of state law and vary depending on the applicable state. To summarize, a federal court may apply state law in a given cause or to a particular issue in a case either as operative of its own force or as incorporated into federal law, or the court may apply uniform federal law. The selection of the appropriate law is not dependent on whether the jurisdictional basis for the action is diversity or federal question jurisdiction. In either instance, the controlling principles are found in federal constitutional, statutory and common law requirements. If these requirements mandate the application of federal law, then state law operating of its own force is inapplicable. Even in such a case, however, state law may provide the rule of decision if it is appropriate to adopt or incorporate state law into the 'federal law as to that issue. (2) Federal Common Law Origins and Developments Despite the declaration in Erie R. R. v. Tompkins, 304 U.S. 64, 78, 58 S.Ct. 817, 822, 82 L.Ed. 1188, 1194 (1938), that there exists “no federal general common law,” bodies of specialized federal common law are recognized and enforced by the Supreme Court and the other federal and state courts. The sources for federal common law vary with the circumstances. For example, in Hinderlider v. La Plata River & Cherry Creek Co., 304 U.S. 92, 110, 58 S.Ct. 803, 811, 82 L.Ed. 1202, 1212 (1938), decided the same day as Erie, the Supreme Court held that “whether the water of an interstate stream must be apportioned between the two States is a question of ‘federal common law’ upon which neither the statutes nor the decisions of either State can be conclusive.” Admiralty and maritime law is another area commonly thought of in the context of federal common law. Justification for the application of federal common law in these instances can be found, inter alia, in the provisions of Article III of the Constitution which extend the judicial power of the United States to controversies between two or more states and to all cases of admiralty and maritime jurisdiction. Development of federal common law is not, however, restricted to instances in which the subject matter of the dispute falls within one of the jurisdictional declarations of Article III, and this court is primarily concerned with the evolution and prerequisites for federal common law outside the mandates of Article III. The watershed case from which much of the theory governing the development and application of federal common law flows is Clearfield Trust Co. v. United States, 318 U.S. 363, 63 S.Ct. 573, 87 L.Ed. 838 (1943). The Clearfield case presented the question whether federal or state law governed recovery on a guarantee of prior endorsements on a check drawn on the United States Treasury. The United States had brought suit for reimbursement of funds paid to Clearfield Trust Company as agent for J. C. Penney Company which had cashed the check without knowing the endorsement was forged. Clearfield Trust Company had made an express guarantee of prior endorsements when it received funds from the United States. The district court had held that the United States was barred from recovering on the guarantee because, under state law, it had unreasonably delayed in giving notice of the forgery. The Supreme Court rejected state law as providing the rule of decision for the case, affirming the court of appeals decision. We agree with the Circuit Court of Appeals that the rule of Erie R. Co. v. Tompkins, 304 U.S. 64 [58 S.Ct. 817], 82 L.Ed. 1188, . . . does not apply to this action. The rights and duties of the United States on commercial paper which it issues are governed by federal rather than local law. . . . The authority to issue the check had its origin in the Constitution and the statutes of the United States and was in no way dependent on the laws of Pennsylvania or of any other state. . . . The duties imposed upon the United States and the rights acquired by it as a result of the issuance find their roots in the same federal sources. ... In absence of an applicable Act of Congress it is for the federal courts to fashion the governing rule of law according to their own standards. . In our choice of the applicable federal rule we have occasionally selected state law. . . . But reasons which may make state law at times the appropriate federal rule are singularly inappropriate here. . . . The application of state law, even without the conflict of laws rules of the forum, would subject the rights and duties of the United States to exceptional uncertainty. It would lead to great diversity in results by making identical transactions subject to the vagaries of the laws of the several states. The desirability of a uniform federal rule is plain. Id. at 366, 63 S.Ct. at 574, 87 L.Ed. at 841-42 (footnote omitted). As defined by subsequent decisions, the Clearfield doctrine can be stated as follows: (1) if the rights and duties of the parties derive sufficiently from a federal source, then federal common law may be held to govern aspects of the case on which no specific constitutional or federal statutory provision provides the rule of decision; (2) upon concluding that federal common law is to govern, the court must then determine whether that law is to be a uniform federal common law or whether the federal rule is to be incorporated from state law. The first decision may be termed the “preemption decision” and the second, the “adoption decision.” The Clearfield doctrine did not spring full grown from the Court in 1943. Instead, it grew from the holdings and rationales of prior decisions and matured in subsequent decisions. One of the important antecedents, decided a few months earlier, is Sola Electric Co. v. Jefferson Electric Co., 317 U.S. 173, 63 S.Ct. 172, 87 L.Ed. 165 (1942). Sola Electric was a diversity case concerning a patent licensing agreement, and the specific issue before the Court was “whether a patent licensee, by virtue of his license agreement, is estopped to challenge a price-fixing clause in the agreement by showing that the patent is invalid, and that the price restriction is accordingly unlawful because not protected by the patent monopoly.” Id. 173, 63 S.Ct. at 172, 87 L.Ed. at 167. The question arose whether the doctrine of estoppel invoked in the lower courts was so in conflict with the federal Sherman Act’s prohibition on price-fixing that federal law must govern notwithstanding contrary state estoppel law. The Court held: It is familiar doctrine that the prohibition of a federal statute may not be set at naught, or its benefits denied, by state statutes or state common law rules. In such a case our decision is not controlled by Eñe R. Co. v. Tompkins. . . . There we followed state law because it was the law to be applied in the federal courts. But the doctrine of that case is inapplicable to those areas of judicial decision within which the policy of the law is so dominated by the sweep of federal statutes that legal relations which they affect must be deemed governed by federal law having its source in those statutes, rather than by local law. . When a federal statute condemns an act as unlawful the extent and nature of the legal consequences of the condemnation, though left by the statute to judicial determination, are nevertheless federal questions, the answers to which are to be derived from the statute and the federal policy which it has adopted. To the federal statute and policy, conflicting state law and policy must yield. Id. at 176, 63 S.Ct. at 173, 87 L.Ed. at 168. The cases on which the Sola Electric Court relied reappear as the precedent for the decision in Clearfield. E. g., Royal Indemnity Co. v. United States, 313 U.S. 289, 61 S.Ct. 995, 85 L.Ed. 1361 (1941); Deitrick v. Greaney, 309 U.S. 190, 60 S.Ct. 480, 84 L.Ed. 694 (1940); Jackson County v. United States, 308 U.S. 343, 60 S.Ct. 285, 84 L.Ed. 313 (1939). Sola Electric is particularly significant because it concerned a purely private dispute in the federal courts solely on the basis of diversity. The Supreme Court fleshed out the Clear-field doctrine in a series of subsequent cases. In Bank of America National Trust & Savings Ass’n v. Parnell, 352 U.S. 29, 77 S.Ct. 119, 1 L.Ed.2d 93 (1956), the bank sued in diversity alleging that the defendants had converted certain bearer bonds on which payment was guaranteed by the United States. The principal issue at trial was whether the defendants had taken the bonds in good faith without knowledge of the defect in their title, and the question before the Supreme Court was whether state law governed the definition of conversion of the bonds. The Court declared that the rationale of the Clearfield decision was inapplicable: The present litigation is purely between private parties and does not touch the rights and duties of the United States. The only possible interest of the United States in a situation like the one heye, exclusively involving the transfer of Government paper between private persons, is that the floating of securities of the United States might somehow or other be adversely affected by the local rule of a particular State regarding the liability of a converter. This is far too speculative, far too remote a possibility to justify the application of federal law to transactions essentially of local concern. Id. at 33, 77 S.Ct. at 121, 1 L.Ed.2d at 96-97. The Court qualified its decision to make clear its conclusion that, although generally inapplicable in the Parnell circumstances, federal common law might govern in other cases involving only private litigants and that, even in Parnell, federal common law would govern specific issues: We do not mean to imply that litigation with , respect to Government paper necessarily precludes the presence of a federal interest, to be governed by federal law, in all situations merely because it is a suit between private parties, or that it is beyond the range of federal legislation to deal comprehensively with Government paper. We do not of course foreclose such judicial or legislative action in appropriate situations by concluding that this controversy over burden of proof and good faith represents too essentially a private transaction not to be dealt with by the local law .... Federal law of course governs the interpretation of the nature of the rights and obligations created by the Government bonds themselves. A decision with respect to the “overdueness” of the bonds is therefore a matter of federal law. Id. at 34, 77 S.Ct. at 121, 1 L.Ed.2d at 97. The next case in the line of decisions is Wallis v. Pan American Petroleum Corp., 384 U.S. 63, 86 S.Ct. 1301, 16 L.Ed.2d 369 (1966), in which the question before the Court was whether federal or state law should, as a general matter, govern the dealings of private parties in oil and gas leases validly issued under the Mineral Leasing Act of 1920. In that case, Wallis had obtained a lease under the Act; one McKenna sued in diversity to be declared a one-third owner of the lease under a prior agreement with Wallis, and Pan American sued McKenna in diversity to force him to honor an option agreement whereby Pan American was to acquire McKenna’s interest in the lease. The cases were consolidated, tried, and ultimately appealed to the Supreme Court. The Court declared: In deciding whether rules of federal common law should be fashioned, normally the guiding principle is that a significant conflict between some federal policy or interest and the use of state law in the premises must first be specifically shown. It is by no means enough that, as we may assume, Congress could under the Constitution readily enact a complete code of law governing transactions in federal mineral leases among private parties. Whether latent federal power should be exercised to displace state law is primarily a decision for Congress. Even where there is related federal legislation in an area, as is true in this instance, it must be remembered that “Congress acts .' . . against the background of the total corpus juris of the states. . . . ” Hart & Wechsler, The Federal Courts and the Federal System 435 (1953). Because we find no significant threat to any identifiable federal policy or interest, we do not press on to consider other questions relevant to invoking federal common law, such as the strength of the state interest in having its own rules govern, . the feasibility of creating a judicial substitute, . . . and other similar factors. If there is a federal' statute dealing with the general subject, it is a prime repository of federal policy and a starting point for federal common law. . [One section of the 1920 Act] provides that oil and gas leases shall be assignable. The Court of Appeals’ opinion relied on this provision, together with reasons why assignment of leases may promote federal policy, in justifying the use of federal rather than state law. However, fitting this approach may be where a State interposes unreasonable conditions on assignability, it can have no force in this instance because Louisiana concededly provides a quite feasible route for transferring any mineral lease .... . [It is argued that] there is a federal interest in having private disputes over [federal leases] justly resolved. Apart from the highly abstract nature of this interest, there has been no showing that state law is not adequate to achieve it. Id. at 68, 86 S.Ct. at 1304, 16 L.Ed.2d at 373-74 (footnote omitted). For the reasons stated, the Court held that “federal law should not govern the present controversy.” Id. at 72, 86 S.Ct. at 1306, 16 L.Ed.2d at 374. Both Parnell and Wallis arose from and were factually confined to disputes between private parties. Although the Supreme Court held under the facts of those cases that state law should govern, the Court specifically indicated in both decisions that it did not limit the development of federal common law to cases involving the United States as a party. It is helpful at this point to consider a larger portion of the discussion quoted by the Court from Hart & Wechsler’s commentary on the federal courts: Federal law is generally interstitial in nature. It rarely occupies a legal field Completely, totally excluding all participation by the legal systems of the states. This was plainly true in the beginning when the federal legislative product (including the Constitution) was extremely small. It is significantly true today, despite the volume of Congressional enactments, and even within areas where Congress has been very active. Federal legislation, on the whole, has been conceived and drafted on an ad hoc basis to accomplish limited objectives. It builds upon legal relationships established by the states, altering or supplanting them only so far as necessary for the special purpose. Congress acts, in short, against the background of the total corpus juris of the states in much the way that a state legislature acts against the background of the common law, assumed to govern unless changed by legislation. The point is vital to appreciation of the legal issues . . . concerned with the relationship between the law of the United States and of the states. It explains why frequently in litigation federal law bears only partially upon the case: the basis of a right asserted by the plaintiff which is open to defenses grounded in state law, the basis of a defense when a state-created right has been ■ advanced, the foundation of a replication to a state defense or only of the rejoinder to a replication that would otherwise be good. It explains why federal law often embodies concepts that derive their content, or some portion of their content, from the states. It makes it less anomalous, at least, that substantive rights may be defined by Congress but the remedies for their enforcement left undefined or relegated wholly to the states; or that per contra national law may do no more than formulate remedies for vindicating rights that have their source and definition in state law. P. Bator, P. Mishkin, D. Shapiro & H. Wechsler, Hart & Wechsler’s The Federal Courts and The Federal System 470-471 (2d Ed. 1973). Consciousness of the interstitial nature of federal law is reflected in the 1973 decision of United States v. Little Lake Misere Land Co., 412 U.S. 580, 93 S.Ct. 2389, 37 L.Ed.2d 187 (1973), which concerned a land dispute under the Migratory Bird Conservation Act. The United States had acquired land in Louisiana under that Act subject to reserved mineral rights in the former owners for 10 years. The reservation of rights could be extended if certain conditions were met. Although the stated conditions had not been met, the former owners contended that they retained the mineral rights under a Louisiana statute which applied retroactively to extend mineral rights reserved in land conveyances to the United States. The United States sued to quiet title, and the question before the Supreme Court was “whether state law may retroactively abrogate the terms of written agreements made by the United States when it acquires land for public purposes explicitly authorized by Congress.” Id. at 582, 93 S.Ct. at 2391, 37 L.Ed.2d at 191. The essential premise of the Fifth Circuit’s decision was that state law governed the interpretation of the agreement. The Supreme Court rejected the suggestion that Erie R. R. v. Tompkins, supra, and the Rules of Decision Act, 28 U.S.C. § 1652, compelled the application of state law in the absence of an explicit congressional command to the contrary. United States v. Little Lake Misere Land Co., supra at 590, 93 S.Ct. at 2396, 37 L.Ed.2d at 196. The Court declared: The federal jurisdictional grant over suits brought by the United States is not in itself a mandate for applying federal law in all circumstances. This principle follows from Erie itself, where, although the federal courts had jurisdiction over diversity cases, we held that the federal courts did not possess the power to develop a concomitant body of federal law. [Nonetheless, this land acquisition] is one arising from and bearing heavily upon a federal regulatory program. Here, the choice-of-law task is a federal task for federal courts, as defined by Clearfield Trust Co. v. United States. Since Erie, and as a corollary of that decision, we have consistently acted on the assumption that dealings which may be “ordinary” or “local” as between private citizens raise serious questions of national sovereignty when they arise in the context of a specific constitutional or statutory provision; particularly is this so when transactions undertaken by the Federal Government are involved, as in this case. In such cases, the Constitution or Acts of Congress “require” otherwise than that state law govern of its own force. Id. at 591, 93 S.Ct. at 2396, 37 L.Ed.2d at 196-97 (footnote omitted). The Court noted that, often, there will be no specific federal legislation governing the particular transaction; this absence of specific statutory provisions is, however, “no reason for limiting the reach of federal law.” Id. at 593, 93 S.Ct. at 2397, 37 L.Ed.2d at 197. Instead, the inevitable incompleteness presented by all legislation means that interstitial federal lawmaking is a basic responsibility of the federal courts. “At the very least, effective Constitutionalism requires recognition of power in the federal courts to declare, as a matter of common law or ‘judicial legislation,’ rules which may be necessary to fill in interstitially or otherwise effectuate the statutory patterns enacted in the large by Congress. In other words, it must mean recognition of federal judicial competence to declare the governing law in an area comprising issues substantially related to an established program of governmental operation.” Id. at 593, 93 S.Ct. at 2397, 37 L.Ed.2d at 197, quoting Mishkin, The Variousness of “Federal Law”: Competence and Discretion in the Choice of National and State Rules for Decision, 105 U.Pa.L.Rev. 797, 800 (1957). The Court described this conclusion respecting the power of the federal courts to declare the governing law as the first step of the Clearfield analysis. The second step of that analysis is to determine whether the governing federal common law is to be derived from “borrowed” or incorporated state law or is to be a uniform rule of federal law not dependent on the body of state statutory and common law. This second step requires a consideration of federal policy, the “‘groundings of the action,”’ the legal interests and relations of the federal government, and “.‘a variety of considerations always relevant to the nature of the specific governmental interests and to the effect upon them of applying state law.’ ” Id. at 595, 93 S.Ct. at 2398, 37 L.Ed.2d at 198, quoting United States v. Standard Oil Co., 332 U.S. 301, 310, 67 S.Ct. 1604, 1609, 91 L.Ed. 2067, 2073 (1947). The Standard Oil decision included in the variety of relevant considerations both “federal supremacy in the performance of federal functions” and “the need for uniformity,” as well as “inferences properly to be drawn from the fact that Congress, though cognizant of the particular problem, has taken no action to change long-settled ways of handling it.” Id. at 310, 67 S.Ct. at 1609, 91 L.Ed. at 2073. Under the circumstances presented in Little Lake Misc.e, the Supreme Court held that it would be inappropriate to incorporate the Louisiana statute as the governing federal law. On the other hand, the Court declined to follow the suggestion, offered “virtually without qualification, that land acquisition agreements of the United States should be governed by federally created federal law.” United States v. Little Lake Misere Land Co., supra 412 U.S. at 595, 93 S.Ct. at 2398, 37 L.Ed.2d at 198. This broad approach was unnecessary in the Court’s view because, even if “the established body of state property law should generally govern federal land acquisitions,” it was clear that the particular Louisiana statute should not be adopted as the federal rule of decision. That statute was deemed “plainly hostile to the interests of the United States” and “plainly not in accord with the federal program.” Id. at 604, 93 S.Ct. at 2403, 37 L.Ed.2d at 199, 203. The Standard Oil case, referred to by Little Lake Misc.e, is of particular interest because it concerns the application of the Clearfield doctrine in a tort context. In that case, a soldier was injured in an accident with a Standard Oil Company truck; the soldier’s hospital expenses were covered by the federal government and his pay was continued during the resulting disability. The soldier released Standard Oil Company in a settlement, but the United States sued the company to recover the amounts expended for hospitalization and soldier’s pay, based on an indemnity theory and on the company’s asserted independent liability to the United States for the deprivation of the soldier’s services. The issues before the Supreme Court were the question of the company’s liability and the question whether that liability should be determined by state or federal law. The Court held that the existence of liability was clearly governed by federal law under the Clearfield doctrine, finding the principles of that case “equally applicable” to federal relations that were noncontractual or tortious in nature. This holding grew from the conclusion that “[pjerhaps no relation between the Government and a citizen is more distinctly federal in character than that between it and members of itjj armed forces.” For that reason, “the scope, nature, legal incidents and consequences of the relation between persons in service and the Government are fundamentally derived from federal sources and governed by federal authority.” Id. 332 U.S. at 305, 67 S.Ct. at 1607, 91 L.Ed. at 2070-71. The Court declared: As in the Clearfield case, moreover, quite apart from any positive action by Congress, the matter in issue is neither primarily one of state interest nor exclusively for determination by state law within the spirit and purpose of the Erie decision. . . . . . . [T]he Erie decision . had no effect, and was intended to have none, to bring within the governance of state law matters exclusively federal, because made so by constitutional or valid congressional command, or others so vitally affecting interests, powers and relations of the Federal Government as to require uniform national disposition rather than diversified state rulings. Cf. Clearfield Trust Co. v. United States .... Hence, although federal judicial power to deal with common-law problems was cut down in the realm of liability or its absence governable by state law, that power remained unimpaired for dealing independently, wherever necessary or appropriate, with essentially federal matters, even though Congress has not acted affirmatively about the specific question. In this sense therefore there remains what may be termed, for want of a better label, an area of “federal common law” or perhaps more accurately “law of independent federal judicial decision,” outside the constitutional realm, untouched by the Erie decision. Id. at 307, 67 S.Ct. at 1607, 91 L.Ed. at 2071-72. Having rejected the application of state law of its own force, the Court next concluded that it was inappropriate to promulgate a federal rule, either one derived by incorporation of state law or one of universal applicability. The United States had argued strongly for the creation of a uniform federal rule: Growth, it urges, is the life of the law as it is of all living things. And in this expansive and creative living process, we are further reminded, the judicial institution has had and must continue to have a large and pliant, if also a restrained and steady, hand. Moreover, the special problem here has roots in the ancient soil of tort law, wherein the chief plowman has been the judge, notwithstanding his furrow may be covered up or widened by legislation. Id. at 811, 67 S.Ct. at 1610, 91 L.Ed. at 2073-74. Despite the law’s capacity for creative growth and the fact that “the judicial hand would stiffen in mortmain if it had no part in the work of creation,” the Court concluded that the development of a federal law as sought by the United States was “a proper subject for congressional action, not for any creative power of ours.” Id. at 314, 67 S.Ct. at 1611,91 L.Ed. at 2075. Accordingly, the Court affirmed the circuit court’s decision reversing the trial court’s judgment for the United States. The most recent Supreme Court decision drawing from Clearfield is Miree v. DeKalb County, 433 U.S. 25, 97 S.Ct. 2490, 53 L.Ed.2d 557 (1977). After an airplane crash following takeoff from the DeKalb-Peachtree Airport, lawsuits were instituted to recover for injury and death against the county, under diversity jurisdiction, and the United States, under the FTCA. The cases were consolidated, and the district court granted the county’s motion to dismiss; that decision was appealed to the Supreme Court. The question on appeal arose from a contract between the county and the Federal Aviation Administration (FAA) whereby the county was to restrict the use of land near the airport to those activities compatible with airport operations. The plaintiffs sought to impose liability on the county as third-party beneficiaries of the contract on the theory that the county’s breach of the contract, by maintaining a garbage dump on the land which attracted birds that were ingested into the plane’s engines, caused the crash. The Supreme Court stated that, since the only basis of jurisdiction over the county was diversity, “the case would unquestionably be governed by Georgia law” under Erie “but for the fact that the United States is a party to the contract in question, entered into pursuant to federal statute.” Id. at 28, 97 S.Ct. at 2493, 53 L.Ed.2d at 562. The Fifth Circuit had held that application of federal common law was mandated for that reason, but the Supreme Court rejected that conclusion. The Court declared: The litigation before us raises no question regarding the liability of the United States or the responsibility of the United States under the contract. The relevant inquiry is a narrow one: whether petitioners as third-party beneficiaries to the contract have standing to sue respondent. While federal common law may govern even in diversity cases where a uniform national rule is necessary to further the interests of the Federal Government, Clearfield Trust Co. v. United States, . the application of federal common law to resolve the issue presented here would promote no federal interests even approaching the magnitude of those found in Clearfield Trust .... The operations of the United States in connection with FAA grants such as these are undoubtedly of considerable ■ magnitude. However, we see no reason for concluding that these operations would be burdened or subjected to uncertainty by variant state-law interpretations regarding whether those with whom the United States contracts might be sued by third-party beneficiaries. Id. at 28, 97 S.Ct. at 2493, 53 L.Ed.2d at 562-63 (footnote omitted). The Court deemed the substantial interests of the United States in regulating air travel and air travel safety insufficient “to call into play the rule of Clearfield Trust” given the narrow issue before the Court. The Court adhered to the language in Wallis, quoted above, that the decision whether to displace state law is primarily for Congress, adding that Congress had chosen not to do so in this case. In a footnote, the Court commented that Congress had considered but not enacted a bill to provide a federal right of action for injuries arising from aircraft disasters. Id. at 32 & n. 5, 97 S.Ct. at 2495 & n. 5, 53 L.Ed.2d at 565 & n. 5. For these reasons, the Court held that the federal interest at stake was too remote to justify application of federal law. Chief Justice Burger concurred in the Court’s decision with a separate opinion in which he stated his belief that the application of federal common law should not be limited to those instances in which the rights and obligations of the federal government are at stake, despite language in the majority opinion that “might be misinterpreted” to so indicate. Id. at 34, 97 S.Ct. at 2496, 53 L.Ed.2d at 566. Clearfield and the other Supreme Court decisions included in the development of the Clearfield doctrine have been discussed and interpreted at length by the lower federal courts. A comprehensive examination of these many cases would require a treatise, but two are of particular note. The first is United States v. Carson, 372 F.2d 429 (6th Cir. 1967), an action for conversion arising from a federal loan under the BankheadJones Farmer Tenant Act, in which the court summarized the principles of the Clearfield doctrine: Clearfield and the cases cited therein emphasize that the federal courts should determine the governing rule or law “according to their own standards” in areas where constitutionally valid federal legislative programs have been commenced. Where a decision is likely to have a substantial effect on the implementation of a federal program, then a federal court should declare a rule consistent with the program’s demands. Congress, of course, is the primary source of federal law, and the federal courts must adhere to the intent of Congress whenever this intent is discernible. . . . [E]ven in situations where the federal courts are not bound by the constitutional principles underlying Erie to apply state law, they might refrain from enunciating a federal rule applicable throughout the nation. The presence of a federal program permits the federal courts to make a choice, but does not of itself determine what the choice will be. Id. at 432. In United States v. Sommerville, 324 F.2d 712 (3d Cir. 1963), cert. denied, 376 U.S. 909, 84 S.Ct. 663, 11 L.Ed.2d 608 (1964), also a conversion case, the court declared: An independent federal rule of decision must be applied when a genuine federal interest would be subjected to uncertainty by application of disparate state rules. Genuine federal interests have been found to be present when federal elements such as statutes, regulations and executive orders exist in the pertinent field. The reasoning underlying the Clearfield decision has been used to support the application of federal law to suits in which there were federal interests. regardless of whether the United States was or was not a party, or whether diversity of citizenship or a federal question served as the jurisdictional basis for the action. Id. at 714-15 (other footnotes omitted). Certain conclusions may be drawn from these cases and their progeny. First, if the particular question is one that arises from and bears heavily upon a federal regulatory program, then the Clearfield doctrine will require the court to apply federal law to that question. This is the preemption decision. The decision that federal law must apply looks to whether the rights and duties of the United States are at stake or whether the interests of the United States are directly affected. The preemption decision is primarily one for Congress, not the courts, but circumstances may exist in which the court must conclude that preemption is required. Second, although not conclusive, the fact that the United States is a party to the suit in general and an interested party as to the particular issue facilitates the conclusion that preemption is appropriate. Nonetheless, preemption may be proper in suits wholly between private parties and, conversely, may be improper in suits to which the United States is a party. Third, if the court concludes that preemption is not warranted, then the matter is ended. If, however, it is determined that federal law should preempt on the particular issue before the court, then the court must reach the second step of the Clearfield analysis, that is, the adoption decision. This decision looks to whether the federal interests can best be effectuated by the adoption of a uniform federal rule or by the adoption or incorporation of state law as the federal rule of decision. State laws that directly conflict with the purposes of the federal regulatory program are inappropriate for adoption, and a court faced with a conflicting state law would adopt a federal rule. (3) Interrelation between Federal Common Law and the FTCA Having set forth the nature of the law applied in the federal courts and the Clear- field doctrine, this court must now examine the specific issues presented by the parties. There are two major questions for decision: (1) does the federal law preempt state standards of negligence because of the pervasive federal regulation of railroad transportation, and (2) does the FTCA preclude the application of such a preemptive federal law in actions brought under that Act’s provisions. Although the parties intermingle the two questions to a certain'extent, it is essential that they be kept separate. The first goes to the merits of the negligence standard to be applied, while the second sets up a barrier to the application of a federal negligence standard. This court will now consider the United States’ argument that the FTCA precludes the application of a preemptive federal law. Southern Pacific contends that the federal regulatory program governing interstate commerce in general and rail transportation in particular is such that the genuine federal interests at stake mandate the application of federal common law to, inter alia, questions of liability. Because no choice of law decision has yet been made in this action, Southern Pacific offers alternative approaches based on the circumstances presented by the law of the two states whose internal law is most likely to govern. It is urged that, if the ultimate choice of law decision points to the application of the internal law of California, then this court should adopt or incorporate California’s comparative negligence standard into federal common law as the federal rule of decision. On the other hand, if the choice of law decision points to the application of Nevada’s internal law, then Southern Pacific contends that Nevada’s contributory negligence scheme must, be rejected as inconsistent with the purposes of the federal regulatory program and a federal rule of comparative negligence promulgated instead. These alternatives come into play only on the assumption that federal law does preempt; in other words, the discussion concerning the adoption of California’s comparative negligence standard and the rejection of Nevada’s contributory negligence standard assumes that the court will reach the second part of the Clearfield analysis, the adoption decision. The United States would truncate the analysis at its initiation on the ground that the FTCA mandates the application of state law operative of its own force and, accordingly, that there is no room for the application of federal common law under the Clearfield doctrine. Based on the premise that the FTCA requires the application of state law operative of its own force, the United States contends that one of the alternatives urged by Southern Pacific — the incorporation of California’s comparative negligence standard as the federal rule of decision — is violative of the mandates of the FTCA. The distinction between state law operative of its own force and state law incorporated into federal common law is largely academic in the usual case. The distinction becomes relevant for purposes of appeal to the Supreme Court because state law incorporated into federal law presents a federal question reviewable in that Court whereas state law operative of its own force presents no federal question. See P. Bator, P. Mishkin, D. Shapiro & H. Wechsler, Hart & Wechsler’s The Federal Courts and the Federal System 439-578 (2d Ed. 1973). In addition, the distinction has been deemed relevant in determining whether the state or the federal conflicts of law rule should govern in a particular case. E. g., Quadrini v. Sikorsky Aircraft Division, 425 F.Supp. 81 (D.Conn.1977). In this case, the United States has seized on the distinction between state law operative of its own force and state law incorporated into federal law and urges that difference as the basis for precluding the application of the Clearfield doctrine to this case. As will be discussed, the initial premise urged by the United States — that the FTCA requires the application of state law operative of its own force — is erroneous; instead, the Act provides for the application of state law incorporated into federal law as the federal rule of decision. Because of that initial erroneous premise, the United States fails to focus on the very pertinent question of whether the FTCA requires the application of state law, as incorporated into federal law, despite the existence of a preemptive federal law. The question before this court turns on whether the FTCA requires the application of state law or whether the FTCA requires the application of the law that a state court would be required to apply to an action between private parties under like circumstances. This court will, first, address the United States’ contention that the FTCA mandates the application of state law operative of its own force. Thereafter, the court will consider the requirements of the FTCA as to the law that must be applied. (a) Does State Law Operative of Its Own Force Govern? The United States’ argument that the FTCA requires the application of state law operative of its own force is based on the Supreme Court’s decision in Richards v. United States, 369 U.S. 1, 82 S.Ct. 585, 7 L.Ed.2d 492 (1962). The question to be decided in that case was “what law a Federal District Court should apply in an action brought under the Federal Tort Claims Act where an act of negligence occurs in one State and results in an injury and death in another State.” Id. at 2, 82 S.Ct. at 587, 7 L.Ed.2d at 494 (footnote omitted). .The choices discussed by the Court were: (1) the internal law of the place where the negligence occurred, or (2) the whole law (including choice-of-law rules) of the place where the negligence occurred, or (3) the internal law of the place where the operative effect of the negligence took place. Id. The Court read the language in section 1346(b) of the Act providing a right of action for injuries caused by the negligent or wrongful act or omission of any employee of the Government . . . under circumstances where . the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred as requiring reference to the second alternative: the whole law of the place where the negligent act occurred. In reaching that conclusion, the Court employed phraseology that, in the United States’ view, demonstrates that the Act mandates the application of state law operative of its own force. This language is as follows: The Tort Claims Act was designed . . . to render the Government liable in tort as a private individual would be under like circumstances. It is evident that the Act was not patterned to operate with complete independence from the principles of law developed in the common law and refined by statute and judicial decision in the various States. Rather, it was designed to build upon the legal relationships formulated and characterized by the States, and, to that extent, the statutory scheme is exemplary of the generally interstitial character of federal law! If Congress had meant to alter or supplant the legal relationships developed by the States, it could specifically have done so to further the limited objectives of the Tort Claims Act. That is, notwithstanding the generally interstitial character of the law, Congress, in waiving the immunity of the Government . . ., could have imposed restrictions and conditions on the extent and substance of its liability. We must determine whether, and to what extent, Congress exercised this power in selecting a rule for the choice of laws to be applied in suits brought under the Act. And, because the issue of the applicable law is cont