Fall, 1993



Federal Preemption in Commercial Aviation

Stuart J. Starry [FNa1]

Copyright © 1993 by the American Bar Association; Stuart J. Starry

Flight 017 was an hour and ten minutes out of Baltimore when it ran into foul weather. Captain Bill Conrad flipped on the sign instructing passengers to buckle up and then commenced a gradual 5,000-foot climb out of the storm. The flight crew was just starting dinner service. Passenger Rick Keeton, seated on the aisle, was craning his neck to identify the culinary treat of the day. Plates began to rattle. Suddenly the starboard wing was thrust down by a renegade air current. The L-1011 simultaneously dropped 100 feet, effectively ruining Rick’s appetite.

Captain Conrad announced to the passengers that they could expect some turbulence for the next hour of the flight. The flight crew continued serving dinner. The turbulence worsened as Rick watched the beverage cart approach his row. Suddenly the aircraft lurched powerfully upward, then dipped. Flight attendants clawed frantically for support. Rick never saw the stainless steel coffee pot that flew over his seat, spattering him with its boiling contents and causing third-degree burns to his scalp, face, neck, and shoulders. Over a year later, even with the benefit of four skin-graft operations, Rick is still disfigured.

You first learn of the incident when Rick contacts you for representation in his suit against the airline. You file a negligence action in state court, knowing that Rick Keeton and the airline are both residents of the same state. Instead of answering your lawsuit and deposing your client, the airline removes your case to federal court, alleging federal question jurisdiction. Two days later, you receive a motion to dismiss your case for failure to state a claim on which relief may be granted.

Although it may seem farfetched to some, this scenario has been playing itself out in many courts across the country. It is perhaps taken for granted that when an airline passenger suffers personal injury or death as a result of tortious conduct on the part of an airline, he or she may maintain a state common law or statutory cause of action against the airline. However, in the wake of the Airline Deregulation Act of 1978 and certain recent federal cases interpreting that act, an issue has emerged that has sent shockwaves through the airline industry and, at the same time, created a rift among the federal circuit courts. That issue is whether § 105 of the Airline Deregulation Act, 49 U.S.C. § 1305, preempts all state common law tort causes of action for wrongful air carrier conduct.

What are the arguments and strategies on both sides of the preemption issue? Should an implied federal statutory remedy be recognized? In the absence of a statutory remedy, should *9 the victims of airline negligence be granted a federal common law cause of action?

Regulating the airlines

Airline regulation began fifty-five years ago when Congress promulgated the Civil Aeronautics Act of 1938. [FN1] This act created the Civil Aeronautics Authority, which in 1940 was renamed the Civil Aeronautics Board (CAB) and charged with regulating commercial aviation. [FN2]

The act also contained a “savings clause,” 49 U.S.C. § 1506, which provided that nothing in the act would “abridge or alter the remedies now existing at common law or by statute, but the provisions of [the] Act [would be] in addition to such remedies.” [FN3] Thus, the state law duties of common carriers, which had been applied to railroads and other means of public transportation of the time, would be the applicable standard for the fledgling airline industry.

The revised Federal Aviation Act of 1958 retained the CAB and created the Federal Aviation Administration. [FN4] It also left untouched the savings clause (§ 1506), thus providing viable state common law and statutory remedies for airline negligence.

In 1978, Congress enacted the Airline Deregulation Act [FN5] to remove the utility-type federal regulatory structure and encourage and develop an air transportation system that “relies on competitive market forces to determine the quality, variety and price of air services.” Although the savings clause was again left unchanged, Congress enacted a federal preemption provision at § 105 of the act (now codified at 49 U.S.C. § 1305), which reads in pertinent part as follows:


[N]o 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. [FN6]

Through promulgation of § 1305, Congress intended to prevent the states from filling the regulatory void created by the Airline Deregulation Act. However, because a lawsuit can have a regulatory effect on airline conduct, some courts have interpreted this provision to mean that all state common law claims that relate to the rates, routes, or services of an air carrier are preempted. This seems to be inconsistent with the Airline Deregulation Act’s focus on removing utility-type regulation. It is this preemption provision and its varying interpretations that have given rise to controversy.

The “shield”: § 1305 after deregulation

In the fifteen years since the adoption of § 1305, a line of federal decisions has slowly broadened its scope. Under these decisions, § 1305 may possibly apply to anything that an airline does.

This line of cases began in 1984 with Hingson v. Pacific Southwest Airlines, [FN7] in which a blind passenger who was forced to sit in a bulkhead seat filed suit in federal court alleging that the airline’s actions constituted unlawful discrimination. His complaint contained fourteen causes of action under both federal and state statutes as well as state common law. Among these were a claim for intentional infliction of mental distress and a claim under California Civil Code § 54.1, which required that handicapped persons be given “full and equal access” to air carrier accommodations.

In preempting the claim based on the California statute, the Ninth Circuit rejected the passenger’s argument that the California law did not conflict with federal law and stated:


Section 1305(a)(1) preemption is not limited to those state laws or regulations that conflict with federal law. It preempts state laws and regulations “relating to rates, routes, or services.” Regulation of air carrier seating policies for handicapped passengers involves the regulation of services within the meaning of § 1305(a)(1). [FN8]

However, the Ninth Circuit also held that Hingson’s common law claims for intentional infliction of emotional distress were not preempted. Thus, Hingson can be read as holding that enforcement of state legislative enactments that impose utility-type regulation are preempted by § 1305, leaving common law tort claims intact.

Three years later, in Anderson v. USAir, Inc., [FN9] the District of Columbia Circuit was faced with an almost identical set of facts. In Anderson, a blind passenger was prohibited by the flight crew from sitting in a row next to an overwing emergency exit. The passenger brought suit against the airline, alleging, among other claims, violation of a common law “obligation … to provide equal and courteous service to all.” [FN10] The court held that, even if applicable in the case at hand, a state common law obligation to give courteous service is expressly preempted by § 1305. Interestingly, the court did not hold that Anderson’s claim of the tort of outrage (which is comparable to a claim of breach of duty of courteous service) was similarly preempted, but rather dismissed the claim on its merits. [FN11] Thus, Anderson expanded the scope of Hingson by interpreting § 1305 to preempt at least some state common law claims.

Finally, in O’Carroll v. American Airlines, Inc. [FN12] in 1989, a passenger was removed from an aircraft and later jailed because of his unruly behavior and apparent intoxication. He subsequently brought suit against the airline for false imprisonment, assault and battery, and negligence, arising out of his allegedly wrongful exclusion from the flight. On appeal of a $260,000 verdict, the defendant airline argued that § 1305 preempted any state law claim for wrongful exclusion. The Fifth Circuit agreed. All of O’Carroll’s claims *10 were held preempted, and the entire lower court proceeding was vacated.

As one might expect, news of this freshly discovered “shield” spread quickly throughout the airline industry. [FN13] Since O’Carroll, many courts have held a variety of state law claims preempted, [FN14] including at least one case involving the death of a passenger. [FN15] Because of the seemingly unjust results, courts have not been unanimous in their interpretations of the breadth of § 1305. To fully understand the divergence of judicial interpretations, it is helpful to examine the arguments that have been advanced by both airlines and passengers.

The airlines, in effect, have taken the position that all state law causes of action for tortious conduct by an airline are expressly preempted by the plain language of § 1305. Any state cause of action for negligence of an airline necessarily “relates” to that airline’s “services,” because it is hard to imagine a single thing done by an airline that does not fall within the plain meaning of the word “services.”

Opponents of the total preemption argument have attacked the “plain meaning” approach with a different commonsense approach: Congress could not possibly have intended to preempt all state tort causes of action in enacting § 1305, because this would effectively leave no remedy for a passenger who is injured through the negligent conduct of an airline. Passengers argue that the primary objective of the Airline Deregulation Act was to increase competition in the airline industry by purposefully creating a void of economic regulation while still ensuring passenger safety. To accomplish this goal, the act eliminated federal control of the rates airlines charge, the routes airlines fly, and the cities to which the airlines provide service. Passengers also argue that because Congress enacted § 1305 without modifying the savings clause, Congress intended the airlines to remain free from state economic regulation while still being governed by common law negligence standards.

The presumption against preemption

When Congress legislates in an area traditionally relegated to the states, such as common law actions for negligence, there is a strong presumption against preemption of state law. [FN16] This presumption can be overcome only by demonstrating a clear and manifest congressional purpose. [FN17] Thus, as with every examination of a statutory provision’s preemptive effect, we must first look to the intent of Congress. [FN18] What did Congress intend to achieve through its enactment of the Airline Deregulation Act of 1978?

Congress may preempt state authority in any one of three ways: 1) by so stating in express terms; 2) by so occupying a field that it would upset the system to allow conflicting state law as an available alternative to litigants; and 3) by enacting a narrowly construed federal statute that so conflicts with existing state law as to render compliance with both impossible. [FN19] Section 1305 is unquestionably an express preemption provision. Hence, the question becomes not whether Congress intended to preempt state laws relating to an air carrier’s services but rather to what extent that preemption was intended.

“Relating to”

Basic rules of statutory construction dictate that absent contrary congressional intent, statutory language should be given its ordinary meaning. [FN20] Congress used a phrase very close to the “relating to” language of § 1305 in § 514(a) of the Employee Retirement Income Security Act of 1974 (ERISA), which is a preemption provision similar to § 1305. Congress said that ERISA “shall supersede any and all state laws insofar as they may now or hereafter relate to any employee benefit plan ….” [FN21] Courts have interpreted the phrase “relates to,” as used in ERISA, broadly. [FN22]

In Shaw v. Delta Airlines, Inc., an ERISA case, the Supreme Court stated that a law “relates to” a subject “if it has a connection with or reference to” that subject. [FN23] The airlines have urged that § 1305 be given the same broad interpretation that ERISA’s § 514 has been given.

Following on the heels of O’Carroll [FN24] in 1989, which held that all of the plaintiffs’ claims were preempted, another Fifth Circuit case, Trans World Airlines, Inc. v. Mattox, [FN25] was decided in the following year. Mattox involved a public state cause of action brought by the Texas attorney general under the Texas Deceptive Trade Practices Act (DTPA). [FN26] TWA, Continental, and British Air were alleged to have engaged in deceptive fare advertising in violation of that act. The airlines subsequently sought to enjoin enforcement of the DTPA by arguing that § 1305 foreclosed the availability of such a state law claim. The district court granted the preliminary injunction. In reviewing that decision, the court of appeals explained:

Although the state laws against deceptive advertising are not aimed specifically at airlines, and clearly do not attempt to set rates, the conclusion is inescapable that such laws do “relate to” rates when applied to airline fare advertising. [FN27]

The Mattox case indicates that judicial enforcement of statutory enactments not specifically targeting airlines is *11 nonetheless preempted if such enforcement will have an effect on airline rates, routes, or services.

In 1991, the Ninth Circuit took a narrower approach to the meaning of “relating to.” In West v. Northwest Airlines, Inc., [FN28] William West was denied a seat on an overbooked flight for which he had purchased a ticket. He subsequently filed suit against the airline for breach of covenant of good faith and fair dealing. The Ninth Circuit Court of Appeals interpreted the “relating to” language in § 1305 as follows:

[W]hile we agree with Northwest that “services” include boarding policies, we disagree with Northwest and the district court that “law[s] … relating to airline services” encompass all state laws that affect airline services, however tangentially…. Instead, we find that § 1305(a)(1) preempts claims only when the underlying statute or regulation itself relates to airline services, regardless of whether the claim arises from a factual setting involving airline services. Thus, state laws that merely have an effect on airline services are not preempted. [FN29]

The West court’s holding that the claims therein were not preempted suggests that only state laws that specifically target the airlines are subject to § 1305 preemption.

The opinion in West was vacated the next year by the Supreme Court in light of the holding in Morales v. Trans World Airlines, Inc. [FN30] In Morales, the Court had adopted a broad interpretation of the “relating to” language in § 1305, arguing that this was in keeping with how they had previously interpreted the language of ERISA. The case was one in which a state sought to enforce its fare advertising guidelines, promulgated by the National Association of Attorneys General, by virtue of a lawsuit pursuant to the state’s general consumer protection laws.

The issue in Morales was whether the enforcement of the consumer protection law in this context was preempted by the Airline Deregulation Act, and the Court held that it was indeed preempted. Morales also makes it clear that § 1305 is to be construed as limiting the savings clause in § 1506. Applying the canon of statutory construction that dictates that the specific governs the general, the court stated that “a general ‘remedies’ savings clause cannot be allowed to supersede the specific substantive preemption provision.” [FN31]

Because it involved judicial enforcement of promulgated guidelines and not common law claims, Morales leaves some unanswered questions about the scope of the “relating to” language. Conceivably, its holding could be limited to judicial enforcement of state statutes and regulations that affect airline rates, routes, and services. There is no indication in Morales that its holding applies to common law tort actions that happen to arise out of factual settings involving air carriers.


A personal injury action against an airline will typically have a minimal regulatory effect on airline rates and routes, so airlines usually claim that the passenger’s cause of action will have a regulatory effect on airline services. Regardless of the scope of the “relating to” language in § 1305, if a passenger’s cause of action can be pleaded so as not to fall within the meaning of “services,” it cannot be subjected to § 1305 preemption. The breadth of the word “services” then becomes a key inquiry.

Congress may have intended to limit its use of “services” to economic considerations. It may have intended the word to encompass virtually everything that an airline does. Or Congress may have intended the scope of the word to fall somewhere between these two extremes.

All-encompassing approach. Proponents of complete preemption have adopted a straightforward, commonsense approach, viewing all state law claims relating to the services of an air carrier as preempted under § 1305. They point to the definition of “service” in Webster’s Dictionary as “useful labor that does not produce a tangible commodity.” [FN32] In West the Ninth Circuit concluded, “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.”‘ [FN33] As such, virtually everything that an airline does, from handing out headphones to piloting the aircraft, is by definition “service.” Because litigation can have a regulatory effect on an air carrier’s conduct, any claim arising out of or “relating to” the “service” provided by the air carrier is necessarily preempted by § 1305.

The proponents further maintain that the legislative history of § 1305 indicates that the scope of its preemptive effect goes far beyond economic regulations. The broad “rates, routes, or services” language of the House version was adopted over a narrower Senate version: “routes, schedules, or rates, fares, or charges in tariffs of, or otherwise promulgating economic regulations for ….” [FN34]

Because of its simplicity, the all-encompassing approach has an initial appeal. However, if carried to its logical extreme, it creates results that are difficult to fathom. Courts adopting this approach have yet to confront these “commonsense” arguments in a mass-disaster setting. In this view, there is no material distinction made between the facts of In re Air Crash Disaster at Dallas/Fort Worth Airport, [FN35] a case involving the tragic deaths of many persons, and the wrongful-exclusion case of O’Carroll. Rather, the facts in both cases fall under the broad definition of “services.”

Incidental-services approach. At least one court has taken a view that draws a distinction between maintenance or operation of the aircraft and services provided incidental to the flight. In Stewart v. American Airlines, *12 Inc., [FN36] a passenger was injured when the nose wheel of the aircraft deflated during flight. The passenger brought suit in state court, alleging state law claims. The case was then removed to federal court by the airline. The district court determined that the passenger’s claim fell outside the scope of § 1305 “services” and remanded the case to state court. The district court explained:

In the instant case, Plaintiff’s 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. [FN37]

The problem with the Stewart case is that it gives no rationale for the distinction it makes between incidental services and operation or maintenance of the aircraft. Stewart blindly follows the results in air crash cases that did not involve arguments of § 1305 express preemption, as the courts cited by Stewart were faced with the question of implied preemption by specific FAA provisions. [FN38] Thus, their results provide no real precedent for a limited view of § 1305.

On the other hand, if Congress did intend to so limit the scope of § 1305, no rationale is needed by a court to carry out the intent of Congress, however irrational that intent may be. In Seidman v. American Airlines, Inc., [FN39] a passenger was injured while evacuating an airplane using the emergency slide after a bomb threat had forced the plane to land. The passenger commenced a diversity action and obtained a favorable jury verdict. Although the Fifth Circuit affirmed in part, reversed in part, and remanded the case to the district court, it did not vacate on the ground that the district court lacked subject-matter jurisdiction as it did in O’Carroll. Whether this indicates that the Fifth Circuit draws the same distinction as Stewart is yet unknown.

It is clear that the Fifth Circuit considers negligent acts by flight attendants to be “services” within the meaning of § 1305. In Baugh v. Trans World Airlines, Inc., [FN40] a passenger alleged that a member of the flight crew stepped on her foot, breaking her ankle. Her claim was based on a state common law negligence theory. In affirming the dismissal of the passenger’s action, the Fifth Circuit Court of Appeals held that the negligence claim related to the services provided by the air carrier and was preempted by § 1305.

Courts are not the only entities to take the incidental-services approach. In promulgating regulations to implement § 1305, the CAB issued the following policy statement:

Tentatively included within the types of regulation that are preempted are those governing scheduling, inflight amenities, minimum capitalization and other regulations designed to affect the quality of air service.


Accordingly, we conclude that preemption extends to all of the economic factors that go into the quid pro quo for passenger’s fare, including flight frequency and timing, liability limits, reservation and boarding practices, insurance, smoking rules, meal service, entertainment, bonding and corporate financing; and we hereby occupy these fields completely. [FN41]

Noticeably absent is any reference to piloting, operating, or maintaining the aircraft. This omission may imply that § 1305 preempts state laws affecting something less than everything an airline does but more than the mere act of providing the traveling public with a particular air transportation option and price.

Utility-type regulation approach. Those who support this approach maintain that the Airline Deregulation Act never changed the regulations governing incidental services or maintenance and operation of aircraft. [FN42] Before the act, these were minimum-requirement, utility-type regulations that could be supplemented by consistent state tort laws. [FN43] There is no reason to believe that the act was meant to alter this aspect of the regulatory scheme. The legislative history of the act also indicates that “service” was used by Congress almost always to mean providing air transportation to the flying public from point to point, not the operation and maintenance of the aircraft.

To counter the argument that § 1305’s breadth is indicated by the different language employed by the House and Senate versions, one can point to the similarities in the House and Senate approaches. The Senate actually considered a version of the provision remarkably similar to the one that was adopted. In discussion of this version, the Senate noted, “This section is not intended to change the state-federal relationship over matters not regulated by the Board ….” [FN44] Thus it may be argued that because torts have never been regulated by the CAB, the preemption section could not have been intended to be so broad as to apply to torts. Even when discussing the House version that was actually adopted, the Senate used “services” in a limited context. [FN45] Therefore, the subtle differences in the original Senate version may be effectively irrelevant.

The House consideration was similar. Representative Glenn Anderson (CA), the chief sponsor of the House bill and its version of § 1305, presented a section-by-section analysis, which reads in part:


The existing declaration of policy, conceived and promulgated in *41 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. [FN46]

Both the House and the Senate’s consideration of the final and adopted version arguably indicates that “services” was limited to its term-of-art meaning and that preemption was limited to utility-type economic regulation. Those who advocate reference only to the ordinary meaning of “services” may be ignoring fundamental canons of statutory construction that also require the examination of the object and policy of a statute. [FN47] The best way to determine congressional intent is to look at the meaning Congress gave the words when it enacted that legislation. [FN48] Any argument that places reliance on the fact that § 1305 uses the term “services” in the plural instead of the singular is potentially misplaced. It can easily be shown that Congress used both “service” and “services” almost interchangeably. [FN49]

Just as the word “service” has a specific meaning in religion and another in the game of tennis, it has a particular meaning in the aviation industry. It is this term-of-art meaning that Congress used continually throughout the legislative history of the Airline Deregulation Act. Indeed, the House version was called the “Air Service Improvement Act”-and it did not require more attentive flight attendants! Rather, its goal was to increase the flight options available to the public. [FN50]

Put them all together … In Diefenthal v. CAB, [FN51] the Fifth Circuit recognized a common law cause of action for what actually amounts to tortious rendition of services under both the all-encompassing approach and the incidental-services approach. While dismissing the claim as lacking the requisite amount in controversy, the court recognized the existence of a claim for a flight attendant’s alleged malicious behavior in refusing to seat the plaintiffs in a smoking section. This holding seems to support the narrow view of the word “services.”

Although § 1305 was not at issue in Diefenthal, the court discussed the power of the CAB to regulate air carrier “services” and spoke of the power to “specify a minimum quality of service and a minimum frequency of schedule.” [FN52] Also, excerpts of legislative history used by the court in the Diefenthal case are similar to those cited above. Whereas the court rejected the Diefenthals’ argument that “adequate services” referred only to frequency of flights, the “quality” of which the court spoke is put in terms of the CAB’s power to regulate the “type” of air service as well as the frequency. [FN53] Thus, because the court in Diefenthal recognized the plaintiffs’ state common law tort claim, it can be said that its definition of services does not encompass tort laws.

An examination of several federal regulations demonstrates that “service” *42 or “services” is often used to describe only the type and frequency of operations offered to passengers and not the manner in which they are provided. For instance, one regulation states that a “substantial change in operations” is defined as including “changes in operations from charter to scheduled service or a large increase in the number of markets served.” [FN54] Another federal rule, which exempts small air-taxi operators from certain federal economic regulations, specifies that applicants or registrants as air-taxi operators must describe the “type of service the carrier will offer (scheduled passenger, scheduled cargo, mail under a U.S. postal service contract, … or other service such as air ambulance operations, …).” [FN55]

Congressional intent regarding tort liability

There is nothing in the legislative history to suggest, even by inference, that Congress considered modifying or federalizing air carrier tort liability. Not only does the entire history-including the bills, reports, and floor debates-focus on utility-type regulation of fares, routes, schedules, and aircraft type but there is also strong evidence that Congress intended to preserve the tort liability of air carriers. As part of the Airline Deregulation Act, Congress added the following provision to the original Federal Aviation Act:

(q) Insurance and Liability: (1) No certificate shall be issued or remain in effect unless the applicant for such certificate or the air carrier … complies with regulations or orders issued by the Board governing the filing and approval of policies of insurance or plans for self insurance in the amount prescribed by the Board which are conditioned to pay, within the amount of such insurance, amounts for which such applicant or such air carrier may become liable for bodily injuries to or the death of any person, or for loss of or damage to property of others, resulting from the operation or maintenance of aircraft under such certificate. [FN56]

It is evident that Congress knew in 1978 that the system after deregulation could subject airlines to such extensive tort liability that approved insurance plans had to be in place.

Preemption exceptions

Proponents of a broad application of § 1305 preemption are quick to point to the language of § 1305(b)(2) that specifically exempts from preemption the proprietary powers of airport operators and the regulation of flights over the state of Hawaii. They argue that no other exceptions to preemption are indicated by Congress, thereby giving § 1305 a broad effect. Under this broad interpretation of the word “services,” a passenger injured anywhere in the continental United States because of an air carrier’s negligence would have his or her state law-based tort claim preempted. However, if the passenger were fortunate enough to have crashed into the beautiful mountains of Maui, the state law claim would remain intact. This ludicrous result surely could not have been intended by Congress.

Procedural impact of § 1305

Assuming complete preemption of state tort law claims, the practitioner must be prepared to deal with the radical and significant changes that would follow in approaching an airline tort claim. First, all such claims brought under state law are vulnerable to summary judgment and dismissal. Second, dismissal may be avoided only by pleading a federal claim. This assumes that a specific federal claim may be implied in the federal aviation statutes and regulations [FN57] or that a federal common law claim can be recognized. Third, the pleading of a federal claim may allow for removal of state court actions to federal court. Finally, the rendition of a judgment on either a state law or a federal claim may result in an appeal on the very issues presented in this article.

Ordinarily, a defendant wishing to remove a state claim to federal court is confronted with the well-pleaded complaint rule, which states that the plaintiff’s pleading on its face must state a federal question. [FN58] Because preemption is normally considered a defense, the federal question does not appear on the face of the pleading and the claim is not subject to removal. However, a corollary to this rule is the “complete preemption” doctrine, which basically states that “the preemptive force of certain federal statutes is so great that they convert otherwise ordinary State law claims into Federal claims for the purposes of the well-pleaded complaint rule.” [FN59]

Although courts appear to be divided on the issue, some have held that enactment of § 1305 represents an express manifestation of intent to preempt completely state law with regard to the regulation of rates, routes, and services of an air carrier. [FN60]

In Mattox, the court clearly stated, “An examination of the preemption language in § 1305(a)(1) and its legislative history leads to the conclusion that Congress did intend to preempt so completely the particular area of state laws ‘relating to rates, routes, or services’ as to preclude state court actions.” [FN61] As such, airlines faced with state law claims should argue that Congress intended such complete preemption in this area as to render any pleaded state law claim federal in nature and removable to federal court.

Implied private causes of action

Again assuming that Congress intended to preempt all state law causes of action relating to air carrier services, the question arises whether any causes of action exist under federal law. Several provisions of the Federal Aviation Act and virtually every regulation promulgated thereunder impose duties on air carriers which, if violated, may result in the injury of a passenger. [FN62] One of the most notable of these provisions is 49 U.S.C. § 1374(a), which imposes a duty on every air carrier to provide “safe and adequate service, equipment and facilities” to its passengers.

In Cort v. Ash, [FN63] the Supreme Court set forth four factors to be used to determine whether an implied cause of action for violation of a federal statute exists:

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? [FN64]

These factors form the template for a litigant’s arguments.

The airlines have pointed to a host of cases holding that no federal implied private cause of action exists under various provisions of the FAA. [FN65] They maintain that proponents of an implied federal right of action have ignored the Fifth Circuit’s exemplary decision in Diefenthal, which specifically applies the Cort factors in analyzing the “adequate service” language of § 1374(a) and holds that no implied cause of action exists. [FN66]

The Diefenthal court noted that § 1374(a) did not on its face protect any particular class of persons and that the federal scheme already provided for the CAB to seek the injunctive relief that the Diefenthals sought. Therefore, there was no indication that Congress intended to create the cause of action propounded. Because the injunctive powers of the CAB were more than adequate to promote the concerns of the Diefenthals, private enforcement would not advance the goals of the statute. Finally, although the duty to provide adequate services is derived solely from federal law, this factor was not enough to imply the federal claims sought. Diefenthal did not specifically address § 1305, but because the case was decided after the provision’s enactment, the court could be presumed to have considered its preemptive effects when applying the Cort factors.

Supporters of an implied right of action contend that the airlines have missed the mark with this argument. They point out that Diefenthal and other cases that refuse to recognize a federal implied claim all were decided prior to O’Carroll. Thus, none were decided by a court operating under the assumption that state common law was preempted by a “clear manifestation of Congressional intent” to federalize airline rates, routes, and services. Those cases assumed the existence of state law remedies.

Moreover, supporters claim that those courts could not have been operating under the assumption that all state tort claims relating to air carrier operations were preempted, or surely the courts’ analysis under Cort would have been different. In Diefenthal, the plaintiffs sought injunctive relief to allow them to smoke under the “adequate service” provisions of § 1374. Arguably, a personal injury case arising under the “safe service” language will allow for a totally different analysis under Cort, as that language imposes a duty on air carriers to deliver their passengers to their destinations safely and unharmed.

Applying Cort factors to § 1374

If § 1305 indeed preempts passenger claims, then § 1374 provides a cause of action under the Cort analysis.

Benefited class. In the absence of state laws protecting them, passengers can look to no authority other than the Federal Aviation Act for protection. It provides the only other source of due care placed on the carrier to transport passengers safely to their destinations. Indeed, the § 1374 duty to provide safe service, equipment, and facilities is aimed at protecting a distinct class of persons: passengers. As members of the class for whose benefit § 1374 was enacted, passengers have a right to expect safe service.

In light of Congress’s clear intention that air carriers be subject to liability for bodily injury and death, as evidenced by the insurance provisions of the act, the “safe service” provisions of § 1374 seem to be Congress’s only remaining tool to protect injured or killed passengers (the obvious recipients of unsafe service). The argument here focuses on protection of passengers. Diefenthal is distinguishable because the court there recognized that the federal scheme was designed not to protect smokers but to control them. [FN67]

Legislative intent to create remedy. Section 1305 manifests the explicit intent to create a federal remedy. Most case authority prior to the passage of the Airline Deregulation Act which discusses whether the Federal Aviation Act implies a cause of action held that it did not, because of the available state law remedies and the lack at that time of congressional intent to preempt state law. [FN68]

If § 1305 of the Airline Deregulation Act has a broad preemptive effect encompassing passengers’ claims for injuries, then Congress has presumably exercised its commerce clause powers to create exclusive federal jurisdiction and allow the application of federal remedies. In O’Carroll, despite plaintiff’s claims that state law remedies were still preserved by the § 1506 savings clause, the court held that “§ 1305 is a clear indication of Congressional intent to preempt and is controlling.” [FN69]

Section 1305 is obviously a clear manifestation of congressional intent to preempt; whether it also indicates a congressional intent to federalize air carrier tort liability is another question. *44 But if state tort claims are preempted, then the second factor of Cort may have to be deemed satisfied. Otherwise, the liability insurance provisions of the act would be rendered meaningless.

Consistency with legislative purpose. An implied remedy would definitely provide airlines with an added incentive to make flights safer, which is the primary purpose of the “safe service” duty of § 1374. The paltry penalties provided by the governmental scheme pale in comparison to the potential multimillion-dollar liability that may arise from an airline crash disaster. [FN70]

Traditional relegation to state law. Assuming state tort laws are preempted, air carrier tort liability would no longer be a matter traditionally relegated to state law under the fourth prong of the Cort test. Thus it would be appropriate to imply a federal remedy in the absence of a state law remedy.

Federal common law remedy for injured passengers?

Assuming complete preemption and no implied federal statutory remedy, it must be determined whether a passenger injured through an airline’s negligence may assert a federal common law cause of action.

Proponents of such a federal common law remedy take a straightforward approach: There should be a remedy for personal injury or death caused by wrongful air carrier conduct, whether such conduct falls within the federal domain (within the term “services”) or within the state domain. If the airlines are correct in their assertion that state law remedies have been preempted and that no federal statutory remedy exists, then Congress must have delegated to the federal courts responsibility for fashioning the rules of aviation law.

In Moragne v. States Marine Lines, Inc., [FN71] a maritime case decided in 1975 (before the federal aviation preemption provision was enacted), the Supreme Court established a common law action for wrongful death under the maritime authority granted to it under Article III, Section 2, of the Constitution. The Court noted certain anomalies that would result if the current law did not recognize such a federal common law claim. Among them were that 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 the territorial waters of a state; and 3) a true seaman was provided with no remedy for death caused by unseaworthiness within territorial waters, whereas a longshoreman would have such a remedy when allowed by a state statute. [FN72]

Under the broad view of § 1305 (preempting all state aviation law claims), similar anomalies result. A person wrongfully excluded from a flight has a federal implied remedy under § 1374 of the Federal Aviation Act. [FN73] Likewise, a handicapped person victimized by discriminatory conduct of an airline has a claim under the Air Carrier Access Act. [FN74] However, other persons who are physically injured by equally or more negligent and careless conduct on the part of the airlines have no remedy. Moreover, those fortunate few whose state law claims fall outside the scope of the § 1305 preemption will be able to seek redress for their injuries, whereas those whose claims happen to fall within the scope of § 1305 are subject to the piecemeal application of federal remedies. [FN75]

Given the airline regulation scheme that has developed, federal courts today face the same practical considerations that spurred the Moragne maritime decision. Scholars have been quick to point out the factual likeness between the maritime and aeronautical arenas. The very nature of the “ocean of air” would suggest that matters in aviation be governed in a fashion similar to those in admiralty. One scholar, in discussing the problems created by the fact that aviation came into being after the drafting of the Constitution, observed:

Much of the plaintiff’s problem in aviation accident law, or in peculiar jury reactions to aviation cases, lies in a simple fact that many of us frequently forget that aviation is new. The first aviation case tried in England was heard in 1933. Chicago claims to have the busiest airport in the entire world. Yet the first Illinois case involving an airplane accident was also tried in 1933. To this day the appellate decisions of many states fail to list any aviation cases. Many basic questions concerning aviation are still to be decided. A federal district court, in 1954, stated that “The question of whether the air space over the seas is within the jurisdiction of admiralty has received little attention and is an open one.” The question was not resolved until 1958 when the Second Circuit held that admiralty governed. As recently as 1935, law review articles appeared expressing the view that the entire ocean of air surrounding the earth was within the admiralty jurisdiction. [FN76]

A perceptive discussion of the similarities and differences between maritime law and the law of aviation can be found in Rogers v. Ray Gardner Flying Service, Inc., [FN77] decided before the Aviation Deregulation Act. The court noted in Rogers that if Congress were to clearly indicate its legislative intent to preempt state law claims for wrongful air carrier conduct, then federal courts would be granted the “comparable power [of maritime law] to fashion their own common law remedies in tort cases arising in the airways.” If § 1305, enacted after Rogers, is a clear indication of congressional intent to preempt state tort law, the Rogers analysis permits the fashioning of a federal remedy.

The argument against a common law *45 action is more difficult to make. There is no particular test that one must meet, as there is with implied remedies under Cort. The best argument is to attack the analogy to maritime law and argue that § 1305 is not so significant an exercise of Congress’s commerce clause powers as to indicate “exclusive” federal jurisdiction.

At the time of the Constitution’s enactment, maritime law was based on a significant preexisting body of common law. [FN78] Moreover, Article III, Section 2, of the Constitution is not a mere grant of jurisdiction but specifically provides judicial “power” to the courts in cases of admiralty and maritime jurisdiction. No such comparable grant of power is evidenced by § 1305. To make this argument, one must attack the Rogers case head on and show that the language of O’Carroll does not provide the type of evidence needed to invoke the Moragne analogy.

Lack of administrative remedies

Those who argue that no cause of action exists at all for personal injuries relating to an air carrier’s rates, routes, or services counter any perceived injustice by noting that passengers remain free to pursue an administrative remedy. In Anderson, the court stated:

[T]he absence of a private remedy does not leave airlines free to deny “safe and adequate service.” A party alleging that an airline failed to provide the requisite service can pursue an appropriate administrative remedy. Under the Aviation Act, the DOT [Department of Transportation] or the FAA is empowered to bring suit directly against an airline or seek other statutorily defined relief. [FN79]

Other federal district courts, in apparent reliance on the Anderson decision, have made similar reference to the existence of an administrative remedy for passengers injured through wrongful air carrier conduct. [FN80] However, the several statutes and regulations cited in Anderson do nothing to remedy passenger injuries and are merely penal in nature. [FN81] In fact, a careful review of the entire federal aviation scheme fails to disclose a single statute that provides for monetary damages to compensate for bodily injury or death of a passenger. [FN82]

“For every wrong, there is a remedy”

In 1803 in Marbury v. Madison, [FN83] the Supreme Court recognized one of the most fundamental tenets of our system of jurisprudence:


The very essence of civil liberty certainly consists in the right of every individual to claim the protection of the laws, whenever he receives an injury. One of the first duties of government is to afford that protection. [FN84]

Many scholarly works have since noted similar ideals. “Fundamental in our jurisprudence is the principal that for every wrong there is a remedy and that an injured party should be compensated for all damage proximately caused by the wrongdoer.” [FN85]

The unjust results that would stem from complete preemption of an injured passenger’s state law claims tend to indicate that Congress never meant to preempt such claims. However, it is not completely clear what Congress intended to preempt when it employed the term “services” in § 1305. It is clear that Congress intended that airlines would be liable for personal injury and death arising out of their operations. Therefore, assuming that § 1305 does preempt all such claims, the absence of an administrative remedy compels recognition of a federal remedy.

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FN[FNa1]. Stuart J. Starry is a partner with the Houston firm of Fleming, Hovenkamp & Grayson, P.C. His practice includes representation of plaintiffs in domestic and international aviation accident cases. The author gratefully acknowledges the assistance of Richard Norman, a student at Baylor University School of Law and a law clerk at Fleming, Hovenkamp & Grayson.

Editor’s note: A copy of the original version of the paper, which includes a full set of citations, is available on request from the author.

FN[FN1]. Civil Aeronautics Act, ch 601, 52 Stat 973 (1938).

FN[FN2]. Hughes Air Corp. v. Public Util. Comm’n, 644 F2d 1334, 1336 (9th Cir 1981).

FN[FN3]. Civil Aeronautics Act, ch 601, 52 Stat at 1027.

FN[FN4]. Federal Aviation Act, Pub L No 85-726, 72 Stat 744 (1958).

FN[FN5]. Airline Deregulation Act, Pub L No 95-504, 92 Stat 1705 (1978).

FN[FN6]. 49 USCA § 1305(a)(1) (West Supp 1991).

FN[FN7]. Hingson v. Pacific Southwest Airlines, 743 F2d 1408 (9th Cir 1984).

FN[FN8]. Id. at 1415 (emphasis added).

FN[FN9]. Anderson v. USAir, Inc., 818 F2d 49 (DC Cir 1987).

FN[FN10]. Id. at 56.

FN[FN11]. The Anderson opinion gives no explanation for this anomaly, other than the fact that the duty-of-courteous-service claim employed the word “service” as it was stated in Anderson’s complaint. The court apparently seized on this use of “service” when applying the “rates, routes, or services” language of § 1305. If the actions of the flight crew in Anderson are part of the air carrier services that § 1305 was designed to prevent states from regulating, then the distinction drawn in Anderson seems baseless.

FN[FN12]. O’Carroll v. American Airlines, Inc., 863 F2d 11 (5th Cir 1989).

FN[FN13]. Calvin Davison and Lorraine B. Halloway, The Two Faces of Section 105-Airline Shield or Airport Sword? 56(1) J Air L & Comm 93 (Fall 1990).

FN[FN14]. Smith v. America West Airlines, No H-91-1550, slip op (SD Tex Sept 3, 1991); Hodges v. Delta Airlines, Inc., No H-90-2276, slip op (SD Tex Sept 3, 1991); Garza v. Southwest Airlines Co., No H-91-351, slip op (SD Tex April 3, 1991); Kiefer v. Continental Airlines, Inc., No 9009353 (Dist Ct of Harris Cty, 129th Jud Dist of Tex July 29, 1991).

FN[FN15]. Howard v. Northwest Airlines, No 4-91-2731, slip op (SD Tex Jan 3, 1992).

FN[FN16]. Puerto Rico Dept. of Consumer Affairs v. ISLA Petroleum Corp., 485 U.S. 495, 500 (1988); Chrysler Corp. v. Texas Motor Vehicle Comm’n, 755 F2d 1192, 1205 (5th Cir 1985), reh’g denied, 761 F2d 695 (5th Cir 1985).

FN[FN17]. California v. ABC Am. Corp., 109 S Ct 1661, 1665 (1989).

FN[FN18]. Wardair Canada, Inc. v. Florida Dept of Revenue, 477 U.S. 1, 6 (1985); Metropolitan Life Ins. Co. v. Massachusetts, 471 U.S. 724, 738 (1984).

FN[FN19]. Jones v. Rath Packing Co., 430 U.S. 519, 525 (1977); English v. General Electric Co., 110 S Ct 2220, 2275 (1990); Michigan Canners and Freezers Ass’n, Inc. v. Agricultural Mktg. and Bargaining Bd., 467 U.S. 461, 469 (1984).

FN[FN20]. Park ‘N Fly v. Dollar Park & Fly, 469 U.S. 189, 194 (1985); Shaw v. Delta Airlines, Inc., 463 U.S. 85, 97 (1983).

FN[FN21]. ERISA, 29 USC § 1144(a) (1988).

FN[FN22]. FMC Corp. v. Holiday, 111 S Ct 403, 407 (1990); Pilot Life Ins. Co. v. Dedeaux, 481 U.S. 41, 46 (1987).

FN[FN23]. Shaw, 463 U.S. at 96-97.

FN[FN24]. O’Carroll, cited in note 12.

FN[FN25]. Trans World Airlines, Inc. v. Mattox, 897 F2d 773 (5th Cir 1990) (aff’g preliminary injunction), cert denied, 111 S Ct 307 (1990).

FN[FN26]. Texas Deceptive Trade Practices Act, Tex. Bus. & Com. Code Ann. § 17.41 et seq. (Vernon 1987).

FN[FN27]. Mattox, 897 F2d at 783.

FN[FN28]. West v. Northwest Airlines, Inc., 923 F2d 657 (9th Cir 1991), vacated and remanded, 504 U.S. 968, 1992 WL 120611, 60 USLW 3376 (No 91-734, June 8, 1992).

FN[FN29]. Id. at 660.

FN[FN30]. Morales v. Trans World Airlines, Inc., 504 U.S. 374, 112 S Ct 2031 (1992).

FN[FN31]. Id., 112 S Ct at 2037.

FN[FN32]. Appellee’s Brief at 9, Hodges v. Delta Airlines, Inc. (No 91- 6037), citing Webster’s Ninth New Collegiate Dictionary 1076 (1984).

FN[FN33]. See West, 923 F2d at 659-60 (citing Public Util. Comm’n, 644 F2d at 1337; Watt v. Alaska, 451 U.S. 259, 265 (1981)).

FN[FN34]. HR Rep No 95-1779, 95th Cong, 2d Sess 94-95 (1978).

FN[FN35]. In re Air Crash Disaster at Dallas/Fort Worth Airport, 919 F2d 1079 (5th Cir 1991).

FN[FN36]. Stewart v. American Airlines, Inc., 776 F Supp 1194 (SD Tex 1991).

FN[FN37]. Id. at 1196-99.

FN[FN38]. Air Crash Disaster at John F. Kennedy Int’l Airport, 635 F2d 67, 74 (2d Cir 1980); In re Air Crash Disaster at Sioux City, Iowa, 734 F Supp 1425, 1428 (ND Ill 1990); In re Air Crash Disaster at Stapleton Int’l Airport, 721 F Supp 1185, 1187 (D Colo 1988).

FN[FN39]. Seidman v. American Airlines, Inc., 923 F2d 1134 (5th Cir 1991).

FN[FN40]. Baugh v. Trans World Airlines, Inc., No 90-2074 (5th Cir 1990) (per curiam, unpublished). The opinion is arguably without precedential value.

FN[FN41]. Statement of General Policy, Implementation of Preemption Provisions of the Airline Deregulation Act of 1978, 44 Fed Reg 9948, 9951 (1979).

FN[FN42]. See House Comm on Pub Works and Transp, 96th Cong, 1st Sess, Legislative History of the Airline Deregulation Act of 1978, 1-53 (Comm Print 1979) [Legislative History].

FN[FN43]. 49 USC § 1421(a) (1976).

FN[FN44]. See 123 Cong Rec 4214, 4219 (1977).

FN[FN45]. See 124 Cong Rec 37,419 (1978).

  • FN[FN46]. 123 Cong Rec 30,595 (1977) (emphasis added). In specifically discussing the new preemption provision, the analysis stated that “preemption is implicit in the present Act, and has been recognized by the courts.” Congress assumed that under “existing law” (prior to the new provision), courts had already determined that the states could not regulate service and fares. Yet Congress was aware of the coexistence of air carrier tort liability. Thus, arguably, Congress’s interpretation of services could not have included tort liability.

FN[FN47]. Kelly v. Robinson, 479 U.S. 36 (1986) (“Of course, the ‘starting point in every case involving construction of a statute is the language itself.’ But the text is only the starting point…. ‘In expounding a statute, we must not be guided by a single sentence or member of a sentence, but look to the provisions of the whole law, and to its object and policy.”‘ [Citations omitted.]) See also Gregory v. Ashcroft, 111 S Ct 2395, 2403 (1991) (recognizing “the maxim of statutory construction noscitur sociis-that a word is known by the company it keeps”).

FN[FN48]. St. Paul Fire & Marine Ins. Co. v. Barry, 438 U.S. 531, 546 (1978).

  • FN[FN49]. See Legislative History at 14 (“nonstop service between any pair of points”); 15 (“impact of new services on the national air route structure”); 21 (local service); 27 (reduced levels of service due to strike); 28 (passenger service, cargo service); 104 (pooling of service); 110 (frequency, type of equipment to assure service); 120 (“air routes and services”); 140 (through service and joint rates); 153 (air services); and continuing through thirty- three more examples.

FN[FN50]. See Legislative History at 509-12.

FN[FN51]. Diefenthal v. CAB, 681 F2d 1039 (5th Cir 1982).

FN[FN52]. Id. at 1046 (emphasis added). The court specifically mentions a case upholding the CAB’s authority to specify the “type of vehicle” to be used. (Id. at 1045.) The example of “quality” regulation at hand was CAB regulation of smoking areas, even after the Deregulation Act. (Id. at 1047.) This type of regulation does not encompass every act of the airline nor does it encompass tort law.

FN[FN53]. Id. at 1044 (“both quantity and the kind”).

FN[FN54]. 14 CFR § 204.4(m) (1986) (emphasis added).

FN[FN55]. 14 CFR § 298.21(c)(iv) (1990). See also 14 CFR §§ 201.4(5) and 204.4(1) (1986).

FN[FN56]. 49 USC § 1371(q) (Supp 1991) (emphasis added).

FN[FN57]. The federal aviation program as set forth in the United States Code provides only a hodgepodge of remedies for very specific types of wrongful conduct. For example, it has been held that passengers who are the victims of airline discrimination have a cause of action pursuant to the antidiscrimination sections of the Federal Aviation Act, 49 USCA § 1374(b). See, e.g., Smith v. Piedmont Aviation, Inc., 567 F2d 290 (5th Cir 1978); Mahaney v. Air France, 474 F Supp 532 (D NY 1979); Roman v. Delta Airlines, Inc., 441 F Supp 1160 (D Ill 1977); Valentine v. Eastern Airlines, Inc., 365 A2d 475, 144 NJ Super 305 (1976).

Conversely, courts have almost uniformly denied the existence of a cause of action for breach of an airline’s duty to provide “safe and adequate service,” a duty imposed by 49 USCA § 1374(a). See, e.g., Anderson, 818 F2d at 54; Diefenthal, 681 F2d at 1048-50. It should be noted that the results in Anderson and Diefenthal might have been different had the courts in those cases assumed a broad reading of § 1305 preemption.

FN[FN58]. Gully v. First Nat’l Bank, 299 U.S. 109, 112-13 (1936).

FN[FN59]. Stewart, cited in note 36, citing Caterpillar, Inc. v. Williams, 482 U.S. 386, 393 (1987).

FN[FN60]. Daniel Petroski, Airlines’ Response to the DTPA-Section 1305 Preemption, 56 J Air L & Comm 125 (1990), citing State v. Pan American World Airways, Inc., No 3-89-0713-H (ND Tex April 19, 1989); Mattox, cited in note 25.

FN[FN61]. Mattox, 897 F2d at 787.

FN[FN62]. For example, Subchapter VI of the Federal Aviation Act deals with Safety Regulation of Civil Aeronautics (e.g., § 1421(f) (collision avoidance systems); § 1425 (maintenance of equipment in air transportation)). In addition, there are twenty provisions in the Code of Federal Regulations that mention deicing requirements with which airlines must comply (e.g., 14 CFR § 135.149 (equipment requirements-general)). Many provisions touch on aircraft- engine safety inspections (e.g., 14 CFR § 21.21 (inspection and tests); 14 CFR § 125.247 (inspection programs and maintenance)). It is easy to see how failure to comply with such regulations could foreseeably result in injury to airline passengers.

FN[FN63]. Cort v. Ash, 422 U.S. 66 (1975).

FN[FN64]. Id. at 78. It should be noted that the four factors set forth in Cort do not constitute a test but merely are factors relevant to the more significant inquiry of general congressional intent.

FN[FN65]. Caceres Agency v. Trans World Airways, 594 F2d 932 (2d Cir 1979) (no federal implied private cause of action under § 1374(b) for airline’s discrimination among travel agents); Rauch v. United Instruments, 548 F2d 452 (3d Cir 1976) (no federal implied private right of action under § 1421 for defective equipment); Wolf v. Trans World Airlines, Inc., 544 F2d 134 (3d Cir 1976) (no federal implied private cause of action under § 1374(b) or § 1381 for deceptive trade practices), cert denied, 430 U.S. 915 (1977); Hingson, 743 F2d at 1414 (implied private right of action under § 1374(b) for discrimination, but no federal implied right of action under § 1374(a) for inadequate service); Kodish v. United Airlines, 628 F2d 1301 (10th Cir 1980) (no federal implied right of action under § 1374(b) or § 1302 (a)(3) for age discrimination among pilots); Danna v. Air France, 463 F2d 407 (2d Cir 1972) (no federal implied private cause of action under § 1374(b) for fare discriminations).

FN[FN66]. Diefenthal, 681 F2d at 1048-50.

FN[FN67]. Id. at 1049.

FN[FN68]. See, e.g., Rogers v. Ray Gardner Flying Service, Inc., 435 F2d 1389 (5th Cir 1970).

FN[FN69]. O’Carroll, 863 F2d at 13 (emphasis added).

FN[FN70]. See 49 USC App § 1471 (a punitive section merely designed to fine airlines from $1,000 to $10,000 per violation); 49 USC App § 1472 (establishing criminal penalties); 49 USC App § 1487 (providing the district court with the power to enforce the above-cited provisions); 14 CFR § 13.5 et seq. (allowing the DOT to process private complaints, tracking the statutory remedies of a $1,000 penalty per violation).

FN[FN71]. Moragne v. States Marine Lines, Inc., 398 U.S. 375 (1975).

FN[FN72]. Id. at 395-96.

  • FN[FN73]. 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 USC § 1511 to remove passengers in the interests of safety. Under 49 USC § 1374(b), giving unreasonable preference to one passenger over another is prohibited, and the rule has been interpreted to limit the pilot’s § 1511 discretion. See, e.g., Williams v. Trans World Airlines, 509 F2d 942 (2d Cir 1975).

FN[FN74]. 49 USCA § 1374(c) (West Supp 1991).

FN[FN75]. The district court opinion in Stewart, in an attempt to reconcile recent Fifth Circuit holdings, drew an equally arbitrary distinction. The Stewart court held that claims of passengers injured in incidents akin to an airline crash disaster have claims, whereas those who are merely injured by negligent rendition of flight-crew service have no claim. (776 F Supp at 1198.)

FN[FN76]. L.S. Kriendler, 1 Aviation Accident L § 1.01, 1-4 (1991) (citing at 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); Report of the Special Committee on the Law of Aviation of the American Bar Association, 46 ABA Rep 77-97, 498-530 (1921); George G. Bogert, Problems in Aviation Law, 6 Cornell L Q 271, 303-5 (1921)).

FN[FN77]. Rogers, 435 F2d at 1395.

FN[FN78]. Although our American system of maritime law draws heavily from our English ancestors, we can trace some general concepts of admiralty law back even further. In writings from Babylonian times until the collapse of the Roman empire, there is evidence of maritime doctrines that persist to this day. See Nicholas J. Healy and David J. Sharpe, Cases and Materials on Admiralty at 3 (West, 1974).

FN[FN79]. Anderson, 818 F2d at 49, 55.

FN[FN80]. Howard, cited in note 15; Hodges, cited in note 32.

FN[FN81]. Statutes cited in Anderson include 49 USC §§ 1421(a)(6), 1471-72, 1482, 1487, and 1511. The lower court in the case cites 14 CFR §§ 13.5 and 302.201-302.206.

FN[FN82]. See 14 CFR § 1 (1986) et seq.; 49 USC § 1301 (1976) et seq.

FN[FN83]. Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803).

FN[FN84]. Id. at 163.

FN[FN85]. Robert S. Thompson and John A. Sebert, Jr., Remedies: Damages, Equity and Restitution, § 1.02, at 1-15 (Matthew Bender 1983) (citations omitted).