Reprinted from TRIAL, March 1994, p. 48.


Preemption in the skies

Stuart J. Starry

Stuart J. Starry is a partner with Fleming, Hovenkamp & Grayson in Houston.  A version of this article appeared in The Brief, Fall 1993 (American Bar Association.)

It is typically assumed that an airline passenger who suffers personal injury may maintain a state common law action against the airline. However, in recent years lawyers have successfully argued that §105 of the Federal Aviation Act of 1978 preempts all state common law tort causes of action for wrongful air carrier conduct.1 Fifty-six years ago the Civil Aeronautics Act of 1938 created what would later become the Civil Aeronautics Board and charged it with regulating commercial aviation.2 The act also contained a “savings clause,”which provided that nothing in the act would “abridge or alter the remedies now existing at common law.”4  Thus, the state law duties of common carriers (including railroads and other means of public transportation) became the tort law for the airline industry.

The revised Federal Aviation Act of 1958 created the Federal Aviation Administration (FAA) but did not change the tort law scheme.5 Finally, in 1978 the Airline Deregulation Act was passed to encourage reliance “on competitive market forces to determine the quality, variety and price of air Services.”6 To prevent states from re-regulating the industry,7 the 1978 act contained what is now 49 U.S.C. §1305. It reads in part:

Federal Preemption

Except as provided in paragraph (2) of this subsection, no State or political subdivision thereof and no interstate agency or other political agency of two or more States shall enact or enforce any law, rule, regulation, standard or other provision having the force and effect of law relating to rates, routes, or services of any air carrier having authority under subchapter IV of this chapter to provide air transportation.8

Courts Expand Preemption

A line of federal decisions has slowly broadened the scope of §1305 since its adoption. Under these decisions, the section may apply to anything an airline does. The first cases involved passenger lawsuits for discriminatory seating policies, and the section was applied to preempt some, but not all, of the passenger’s state law claims.9

Finally, in a 1989 case, O’Carroll v. American Airlines, Inc., a passenger was removed from an airplane and later jailed because of his unruly behavior and apparent intoxication. The passenger sued the airline for false imprisonment, assault and battery, and negligence. He was awarded $260,000. However, the Fifth Circuit concluded that all his common law claims were preempted by §1305, and “thus the district court lacked subject matter jurisdiction” over the action. 10

Reports of this newfound “shield” spread rapidly throughout the airline industry. 11 Since many courts have held a variety of state law claims preempted,12 including at least one case that involved a passenger’s death. 13

To be prepared for an airline tort case, a practitioner should understand the arguments advanced by airlines and passengers. In general, airlines argue that all state law tort claims are expressly preempted by the plain language of §1305, which preempts any manner of state law relating to “rates, routes, or services” of air carriers. Thus, all state law causes of action for airline negligence necessarily “relate” to airline “rates, routes or services.”

Passengers have attacked the “plain language” approach with a commonsense argument of their own: Congress could not possibly have intended to preempt all state tort claims. Under the airlines’ argument, a passenger injured through the airline’s negligence would have no remedy. Furthermore, Congress passed §1305 without changing the savings clause.14 Thus, airlines are unhindered by state economic regulation while they are still governed by common law negligence standards.

In areas that are traditionally occupied by state law,15 there is a strong presumption against preemption, which can be overcome only by clear congressional purpose.16 As with each analysis of a statute’s preemptive effect, the intent of Congress must be explored first.17 What did Congress intend to achieve when it, passed §1305?

In Morales v. Trans World Airlines Inc., the Supreme Court interpreted the “relates to” language in the section broadly:

True to our word, we have held that a state law “relates to: an employee benefit plan, and is preempted by ERISA, “if it has connection with or reference to such a plan.” Since the relevant language of the ADA [Airline Deregulation Act] is identical, we think it appropriate to adopt the same standard here: State enforcement actions having a connection with or reference to airline “rates, routes, or services”. are preempted under 49 U.S.C. App. §1305(a)(1).18

Morales also makes it clear that §1305 is to be construed as limiting the savings clause in §1506. The Court stated that “a general ‘remedies’ savings clause cannot be allowed to supersede the specific substantive preemption provision.”19

Morales involved the application of consumer protection laws; thus, it left some (*49) unanswered questions about the scope of §1305 with respect to an airline tort claim. In Hodges v. Delta Airlines, the Fifth Circuit, faced with preemption of a claim for personal injury received on an airplane, said, “Morales informs but does not squarely resolve this case…. While under Morales the scope of state laws that ‘relate to’ services must be broadly interpreted, the nature of the ‘services’ preempted by §1305(a) is more narrow than might at first be supposed.”20 Just how narrow is it?

A personal injury action against an airline will rarely affect airline rates or routes. Therefore, airlines typically invoke §1305, alleging that the passenger’s claim will affect its services. Regardless of the scope of the “relates to” language, if a passenger’s claim is pleaded so as not to relate to airline services, it cannot be preempted by §1305. Thus, the breadth of the word “services” becomes the key to surviving a preemption attack.

‘Plain Meaning’

In West v. Northwest Airlines, the Ninth Circuit applied the “plain meaning” of the statute and concluded: “[W]e believe that the plain meaning of ‘services’ clearly includes services provided to customers such as the boarding services at issue here. If Congress had intended to limit the word ‘services’ to something other than its common usage, it could easily have used the words ‘types of services’ rather than ‘services.’21

Proponents of complete preemption argue that the word “service” is defined in Webster’s dictionary as “useful labor that does not produce a tangible commodity.”22 As such, virtually everything that an airline does, from distributing pillows to landing the airplane, is by definition service.

Yet, if carried to its logical extreme, this argument fails. For example, not only would it extend to the wrongful ejection of a passenger in O’Carroll, but it would further encompass the tragic deaths of many in the Air Crash Disaster at Dallas/Fort Worth Airport23 case. Both would fall under the broad definition of services. It is one thing to send an unruly passenger home without an award of damages, but to do the same to crash victims is unthinkable.

At least one court has drawn a distinction between maintaining or operating the aircraft and providing services incidental to the flight. In Stewart v. American Airlines, a passenger was injured when the nose wheel of the aircraft deflated during landing. The passenger sued the airline in state court, alleging state law claims. Upon removal, the U.S. district court determined that the passenger’s claim fell outside the scope of §1305, and the court remanded the case, explaining:

In the instant case, Plaintiffs claims are more like those arising out of an air crash than those considered in O’Carroll. . . . Plaintiff does not allege that Defendant negligently provided such services as boarding, ticketing, and the like Rather, he simply alleges that he was injured when the airplane malfunctioned during the course of his flight, and that Defendants’ negligent maintenance and operation was the legal and proximate cause of his injuries.24

The Stewart decision, however, does not explain the distinction drawn between providing incidental services and operating or maintaining the aircraft. Stewart blindly follows the results in air crash cases involving implied preemption by specific FAA provisions.25 Their results provide no precedent for limiting a general express preemption provision like §1305.

The Airline Deregulation Act did not change the FAA safety regulations governing incidental services or maintenance and operation of aircraft.26 They have always been minimum-requirement regulations that could be supplemented by consistent state tort laws.27 The chief sponsor of the House bill indicated the act was to affect economic factors, not tort law: “The existing declaration of policy, conceived and promulgated in 1938, is a reflection of the times in which it was born. Its orientation is toward the development and protection of an infant industry through public utility-type regulation over entry, exit, and pricing.”28

Indeed, Congress almost always used the words “service” and “services” to describe the provision of air transportation from point to point, that is, to describe routes and flights, not the operation and maintenance of the aircraft.29 The House version of the bill was originally called the “Air Service Improvement Act”-and it did not require more careful flight attendants and pilots. Its goal was to increase the flight options available to the public.30

There is strong evidence that Congress intended to preserve the tort liability of air carriers. As part of the Airline Deregulation Act, Congress required air carrier to maintain liability insurance for bodily injuries to, or the death of, any person, or for loss of, or damage to, property of others, resulting from operating or maintaining aircraft.”31

A panel of Fifth Circuit judges in an en banc review recently expressed the view that the current Fifth Circuit interpretation of §1305 should be reversed. In Hodges, the court considered the state (*50) law claims of a passenger whose hand and arm were severely cut by a case of bottles that had fallen from an overhead bin.32

The court held the plaintiff’s claims to be preempted because it was bound by Baugh v. Trans World Airlines33 a previously unpublished opinion. Baugh held that a passenger’s claim that a flight attendant negligently stomped on her foot arose “out of the services” of TWA and was thus preempted. Nevertheless, the Hodges panel said that Baugh was incorrectly decided:

Hodges alleged that Delta was negligent in allowing the case of rum to be stowed in the overhead storage bin. This tort claim for personal injury has no specific “reference to” airline services. Nor would enforcement of her claim significantly affect Delta’s services, as defined above…. Nevertheless, under Baughwe are compelled to affirm and to suggest en banc review.34

Is There a Federal Remedy?

If Congress did, in fact, intend to preempt all state law causes of action relating to air carrier services, are there any causes of action that exist at federal law?

Is there an implied statutory remedy?

Several provisions of the Federal Aviation Act and virtually every regulation promulgated under it impose duties on air carriers that if violated may result in injury to a passenger.35  One notable provision is 49 U.S.C. §1374(a), which requires air carriers to provide “safe and adequate service, equipment and facilities” to its passengers.

If this duty creates an implied remedy, it must satisfy an analysis of four factors set out in the U.S. Supreme Court case Cort v. Ash.36

(1) Is the person a member of a class for whose special benefit the statute was enacted (that is, does the statute create a federal right in favor of the plaintiff)?

(2) Is there any indication of any legislative intent, explicit or implicit, either to create such a remedy or to deny one?

(3) Is it consistent with the underlying purposes of the legislative scheme to imply such a remedy for the plaintiff?

(4) Is the cause of action traditionally relegated to state law in an area basically the concern of the state, so that it would be inappropriate to infer a cause of action based solely on federal law?

The airlines point to a host of cases holding that no implied remedy exists under various provisions of the FAA.37

However, none of these cases specifically considers §1305’s effect.

Rogers v. Ray Gardner Flying Service Inc., suggests that §1305 preemption would allow the creation of federal remedies.38 The plaintiffs brought a wrongful death action against a fixed-base operator (FBO) for deaths in a plane crash. The plane was leased by a third party to the FBO, who, in turn, rented it to the pilot under an oral agreement.

Because the Oklahoma law of bailments precluded claims against the FBO, the plaintiff; sought to hold the operator vicariously liable for the pilot’s negligence under federal laws that would create the desired vicarious liability if they implied a cause of action. 49 U. S.C. §1301(26) provided that lessors were, deemed to be operating the aircraft they lease, and 14 C.F.R. §91.9 stated that no person may operate an aircraft unsafely.

The court also held that the plaintiffs had no federal claim primarily for one reason: lack of congressional intent to preempt the state laws involved. The court stated, “We do not question that under its commerce clause powers Congress could preempt state law with regard to the liability for injuries resulting (*51) from air crashes. But we are not convinced that in this instance Congress has clearly indicated any such intent to supersede state laws.”39

The court also rejected the plaintiffs’ analogy to maritime law on the ground that maritime law was made the subject of exclusive jurisdiction under the Constitution. In aviation, the commerce clause powers of Congress had not been exercised to create exclusive federal jurisdiction. The court said:

The Constitution of the United States extends the judicial power of the federal courts to admiralty and maritime cases, and the federal courts have therefore been obliged to fashion a general maritime law in the absence of federal statute.

Conversely, the commerce clause as interpreted by the courts has left state sovereignty unimpaired except where Congress has clearly indicated an intent to supersede state law. The development of the power of the federal government under these two constitutional provisions has been strikingly dissimilar. A clear mandate has been recognized in the maritime area for the establishment of uniform federal law, whereas the delicate problem of federal-state relations has resulted in a more stringent rule that federal preemption under the commerce clause will not be presumed in the absence of a clear indication of the intent of Congress.40


But the O’Carroll court held that §1305 “is a clear indication of congressional intent to preempt and is controlling.”41 Whether §1305 indicates a congressional intent to federalize air carrier tort liability is another question. But if state tort claims are preempted, then Cort v. Ash may be satisfied. Otherwise, the act’s liability insurance provisions would be rendered meaningless.

Is their a federal common law cause of action?  If the airlines are correct in asserting that state law remedies have been preempted and no federal statutory remedy exists, Congress must have delegated to the federal courts responsibility for fashioning the rules of aviation law.

In Moragne v. States Marine Lines, Inc.,42 a maritime case, the Supreme Court fashioned a common law action for wrongful death under the authority granted by Article III, Section 2, of the U.S. Constitution.

The Court noted certain anomalies that would result if the current law did not recognize a federal common law claim. Among them:

(1) In territorial waters, identical conduct violating federal law produced liability if the victim was injured but exculpated the defendant if the victim was killed.

(2) Identical breaches of duty resulting in death produced liability outside the three-mile limit but not within a state’s territorial waters.

(3) A true seaman had no remedy for death caused by unseaworthiness within territorial waters, while a longshoreman would have a remedy when allowed by a state statute.43

Under the broad view of §1305 –preempting all state law claims– similar anomalies result. A passenger wrongfully forced to leave an airplane by a pilot would have a federal remedy under §1374.44 Likewise, a disabled passenger subjected to discrimination would have a claim under the Air Carrier Access Act.45 However, people physically injured by other wrongful airline conduct would have no remedy unless they happened to be flying in Alaska .46

Scholars have pointed to the factual likeness between the maritime and aeronautical settings. The nature of the “ocean of air” would suggest that matters in aviation be governed similarly to those in admiralty.47

The Rogers case can be used to assert the existence of a federal common law cause of action just as easily as it is used to create an implied remedy if all state law is considered preempted. The Rogers court noted that if Congress clearly indicated its legislative intent to preempt, federal courts would be granted the “comparable power to fashion their own common law remedies in tort cases arising in the airways.”48

What Congress Intended

The injustice that would result from complete preemption of an injured passenger’s state law claims tends to indicate that Congress never meant to preempt these claims. However, it is not completely clear what Congress intended to preempt when it used the term “services” in §1305.

What is clear is that Congress intended airlines to be liable for personal injury and death arising from their operations. Therefore, assuming that the section does preempt all such claims, the absence of a state law remedy compels recognizing a federal remedy.

The new application of §1305 renders all claims brought under state law vulnerable to summary judgment and dis(*52)missal. Dismissal may be avoided by pleading a viable federal claim. This assumes a specific federal claim may be implied in the federal aviation statutes and regulations, or a federal common law claim can be recognized. Pleading a federal claim may result in removal to federal court.

Finally, rendering judgment on either a state or a federal claim may result in appeal of the very issues that are presented in this article.

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  1. 49 U.S.C. §1305 (1988).
  2. Civil Aeronautics Act of 1938, Pub. L. No. 706, 52 Stat. 980 (1938).
  3. 49 U.S.C. §1506 (1988).
  4. Civil Aeronautics Act of 1938, Pub. L. No. 706, 52 Stat. 1027 (1938).
  5. Federal Aviation Act, Pub. L. No. 85-726, 72 Stat. 744 (1958).


  1. Airline Deregulation Act, Pub. L. No. 95-504, 92 Stat. 1705 (1978).
  2. 123 CONG. REC. 30,595 (1977).


  1. 49 U.S.C. §1305(a)(1) (1988).
  2. See, e.g.,Hingson v. Pacific Southwest Airlines, 743 F.2d 1408 (9th Cir. 1984): Anderson v. USAir, Inc., 818 F.2d 49 (D.C. Cit. 1987).
  3. 863 F.2d 11, 13 (5th Cir.),cert. denied,490 U.S. 1106 (1989).
  4. Calvin Davison & Lorraine B. Halloway,The Two Faces of Section 105-Airline Shield or Airport Sword,56 J. AIR L. & COM. 93 (1990).
  5. See, e.g.,Smith v. America W. Airlines, No. H-91-1550 (S.D. Tex. Sept. 3,1991); Hodges v. Delta Airlines, Inc., No. H-90-2276 (S.D. Tex. Sept. 3, 1991); Garza v. Southwest Airlines Co., No. H-91-351 (S. D. Tex. Apr. 3. 1991).
  6. SeeHoward v. Northwest Airlines, 793 F. Supp. 129 (S.D. Tex. 1992).
  7. See49 U.S.C. §1506 (1988).
  8. California v. ARC Am. Corp., 490 U.S. 93, 101 (1989).
  9. Puerto Rico Dept of Consumer Affairs v. ISLA Petroleum Corp., 485 U.S. 4955 500 (1988); Chrysler Corp. v. Texas Motor Vehicle Comm’n, 755 F.2d 11925 1205 (5th Cir. 1985).
  10. Wardair Canada, Inc. v. Florida Dep’t of Revenue, 477 US. 1, 6 (1985); Metropolitan Life Ins. Co. v. Massachusetts, 471 U.S. 724, 738 (1985).
  11. 112 S. Ct. 2031, 2037 (1992).
  12. Id.
  13. 4 F.3d 350, 353 (5th Cit. 1993).
  14. 923 F.2d 657, 659-60 (9th Cir. 1990).
  15. Brief for Appellee at 9, Hodges v. Delta Airlines, Inc., 4 F.3d 350 (5th Cir. 1993), citing WEBSTER’S NINTH NEW COLLEGIATE DICTIONARY 1076 (1985).
  16. 919 F.2d 1079 (5th Cir.), cert.denied,112 S. Ct. 276 (1991).
  17. Stewart v. American Airlines, Inc., 776 F. Supp. 1194, 1196-99 (S.D. Tex. 1991).

25 E.g., Air Crash Disaster at John F. Kennedy Int’l Airport, 635 F.2d 675 74 (2d Cir. 1980); In re Air Crash Disaster at Sioux City, Iowa, 734 F. Supp. 1425, 1428 (N.D. M. 1990); In re Air Crash Disaster at Stapleton Int’l Airport, 721 F. Supp. 1185, 1187 P. Colo. 1988).

  1. See generally Airline Deregulation Act of 1978, Pub. L. No. 95-504,reprinted inHOUSE COMM. ON PUB. WORKS AND TRANSP., 96TH CONG., 1ST SESS., LEGISLATIVE HISTORY OF THE AIRLINE DEREGULA(*53)TION ACT OF 1978 at 1-53 (1979) [hereafter LEGISLATIVE HISTORY].
  2. 49 U.S.C. §1421(a) (1988).
  3. 123 CONG. REC. 30,595 (1977) (quoting from congressional testimony of representations of Civil Aeronautics Board) (emphasis added).
  4. See, e.g.,LEGISLATIVE HISTORY, supra note 26, at 2 (providing transport from one point to another); id. at 14 (“nonstop service between any pair of points”); id. at 16 (between points); id. at 31 (serving eligible points); id. at 140 (through service and joint rates); id. at 171 (“prices, route structures, and nature and variety of services to be set by the independent forces of the free market”).
  5. SeeLEGISLATIVE HISTORY, supra note 26, at 509-12.
  6. 49 U.S.C. §1371(q) (1988).
  7. 4 F.3d 350.
  8. 915 F.2d 693 (5th Cit. 1990).
  9. 4 F.3d 350, 356 (citations omitted) (the full court has recently granted the author’s request for en banc review).
  10. Subchapter VI of the Federal Aviation Act deals with Safety Regulation of Civil Aeronautics(e.g.,§1425 (maintenance of equipment in air transportation)); 20 provisions in the Code of Federal Regulations mention de-icing requirements (e.g., 14 C.F.R. §135.149 (1993) (equipment requirements-general)); many provisions touch on aircraft engine safety inspections (e.g., 14 C.F.R.. §21.21 (inspection and tests)). It is fairly easy to see how failure to comply with such regulations could foreseeably result in injury to airline passengers.
  11. 422 U.S. 66, 78 (1975).
  12. See, e.g.,Diefienthal v. Civil Aeronautics Bd., 681 F.2d 1039, 1048-50 (5th Cir. 1982) (no cause of action for “adequate service” under §1374(a)), cert. denied, 459 U.S. 1107 (1983); Caceres Agency v. Trans World Airways, 594 F.2d 932 (2d Cir. 1979) (no federal implied private cause of action under §1374(b) for airlines discrimination among travel agents), cert. denied, 459 U.S. 1107 (1983); Rauch v. United Instruments, 548 F.2d 452, 457 (3d Cir. 1976) (no federal implied private right of action under §1421 for defective equipment).
  13. 435 E.2d 1389 (5th Cir. 1970),cert. denied, 401U.S. 1010 (1971).
  14. Id. at 1393.
  15. Id. at 1395 (emphasis added).
  16. 863 F.2d 11, 13 (emphasis added).
  17. 398 U.S. 375 (1970).
  18. Id. at 395-96.
  19. This cause of action has typically been asserted as an “abuse of discretion” case, asserting that the pilot in command abused the discretion given to him by 49 U.S.C. §1511 to remove passengers in the interests of safety. 49 U. S.C. §1374(b) prohibits giving unreasonable preference to one passenger over another and has been interpreted to limit the pilot’s §1511 discretion.See,e.g., Williams v. Trans World Airlines, 509 F.2d 942 (2d Cir. 1975).
  20. 49 U.S.C. §1374(c) (1988).
  21. 49 U.S.C. §1305(a)(2).
  22. Lee S. Kriendler, 1 AVIATION ACCIDENT LAW §1.01 (1963)(citingat n.7, Arnold W. Knauth, Aviation and Admiralty, 6 AIR L. REV. 226 (1935); Van Vechter Veeder, The Legal Relation Between Aviation and Admiralty, 2 AIR L. REV. 29 (1931); AMERICAN BAR ASS’N. REPORT OF THE SPECIAL COMM. ON THE LAW OF AVIATION 498-530 (1921); George G. Bogert, Problems in Aviation Law, 6 CORNELL L.Q. 271, 303-5 (1921)).
  23. Rogers,435 F.2d 1389, 1395.