Hodges v. Delta Airlines, Inc.

United States Court of Appeals,

Fifth Circuit.

No. 91-6037.

Frances S. HODGES, Plaintiff-Appellant,

v.

DELTA AIRLINES, INC., Defendant-Appellee.

Feb. 15, 1995.

Appeal from the United States District Court for the Southern
District of Texas.

Before POLITZ, Chief Judge, GARWOOD, JOLLY, HIGGINBOTHAM, DAVIS,
JONES, SMITH, DUHÉ, WIENER, BARKSDALE, EMILIO M. GARZA, DeMOSS,
BENAVIDES, STEWART, and PARKER, Circuit Judges.

EDITH H. JONES, Circuit Judge:

During a flight from the Caribbean to Miami, Frances Hodges

was injured when a fellow passenger opened an overhead compartment

and dislodged a case containing several bottles of rum. The box

fell and cut her arm and wrist. In her lawsuit against Delta

Airlines, Hodges alleged that the airline's negligence caused her

injury and medical expenses. The question before this court en

banc is whether her state law tort claim for physical injury based

on alleged negligent operation of the aircraft is preempted by §

1305(a)(1) of the Airline Deregulation Act of 1978 (ADA), 49

U.S.C.App. §§ 1301 et seq. 92 Stat. 1705 (codified at various

sections of Title 49 U.S.C.App.). We hold that it is not and

therefore overrule Baugh v. Trans World Airlines, Inc., 915 F.2d

693 (5th Cir.1990), an originally unpublished opinion that, as

circuit precedent, compelled the opposite result in the panel

opinion herein.

1
 DISCUSSION

The summary judgment awarded by the district court is reviewed

de novo on appeal. Hanson v. Continental Ins. Co., 940 F.2d 971,

975 (5th Cir.1991).

Section 1305(a)(1) provides in pertinent part:

[N]o state ... 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 Title IV of this Act to provide
air transportation.

49 U.S.C.App. § 1305(a)(1).

This provision originated in the ADA, an economic deregulation

statute. The Federal Aviation Act of 1958 (FAA), 72 Stat. 731, 49

U.S.C.App. § 1301 et seq. (as amended), conferred on the Civil

Aeronautics Board economic regulatory authority over interstate air

transportation. The FAA did not expressly preempt state regulation

of intrastate air transportation. In 1978, Congress amended the

FAA after determining that efficiency, innovation, low prices,

variety, and quality would be promoted by reliance on competitive

market forces rather than pervasive federal regulation. Congress

enacted the ADA to dismantle federal economic regulation. To

prevent the states from frustrating the goals of deregulation by

establishing or maintaining economic regulations of their own,

Congress enacted § 1305(a)(1), which preempts the states from

enforcing any law "relating to rates, routes or services" of any

carrier. Morales v. Trans World Airlines, Inc., --- U.S. ----, 112

S.Ct. 2031, 119 L.Ed.2d 157 (1992).

The question in this case is the breadth of that express

2
preemption of state law.1 Interpretation of the statutory language

is the key to construing its preemptive force. Morales, --- U.S.

at ----, 112 S.Ct. at 2037.

The Supreme Court has twice broached the subject of §

1305(a)(1) preemption in a way that informs but does not squarely

resolve this case. In the first decision the question was whether

§ 1305(a)(1), in providing that no state may enforce any law

"relating to rates", overcame the attempts of several state

attorneys general to apply state deceptive advertising laws against

the airlines. Morales held that it did. Morales drew upon the

broad construction of the phrase "relating to" in the ERISA cases.2

Thus, the phrase "relating to" means "to stand in some relation;

to have bearing or concern; to pertain; refer; to bring to

association with or connection with." Morales, --- U.S. at ----,

112 S.Ct. at 2037 (quoting Black's Law Dictionary 1158 (5th

1
State law is displaced by federal law where (1) Congress
expressly preempts state law; (2) Congressional intent to
preempt is inferred from the existence of a pervasive regulatory
scheme; or (3) state law conflicts with federal law or
interferes with the achievement of federal objectives.
Hillsborough County, Florida v. Automated Medical Laboratories,
Inc., 471 U.S. 707, 713, 105 S.Ct. 2371, 2375, 85 L.Ed.2d (1985);
Shaw v. Delta Airlines, Inc., 463 U.S. 85, 95, 103 S.Ct. 2890,
2899, 77 L.Ed.2d 490 (1983); see also Rice v. Santa Fe Elevator
Corp., 331 U.S. 218, 230, 67 S.Ct. 1146, 1152, 91 L.Ed. 1447
(1947); Silkwood v. Kerr-McGee Corp., 464 U.S. 238, 248, 104
S.Ct. 615, 621, 78 L.Ed.2d 443 (1984).
2
See Shaw v. Delta Airlines, Inc., 463 U.S. 85, 97, 103
S.Ct. 2890, 2900, 77 L.Ed.2d 490 (1983) (a state law relates to
an employee benefit plan and is preempted "if it has a connection
with or reference to such a plan"). This language is
"expansive," Pilot Life Ins. Co. v. Dedeaux, 481 U.S. 41, 47, 107
S.Ct. 1549, 1552-53, 95 L.Ed.2d 39 (1987), and "broadly worded,"
Ingersoll-Rand Co. v. McClendon, 498 U.S. 133, 137-40, 111 S.Ct.
478, 482-83, 112 L.Ed.2d 474 (1990).

3
Ed.1979)). Consequently, "[s]tate enforcement actions having a

connection with or reference to airline "rates, routes or services'

are preempted" under § 1305(a)(1). Id.

As a necessary consequence of its broad interpretation, the

Court rejected the argument that § 1305(a)(1) preempts the states

only from actually prescribing rates, routes, or services. ---

U.S. at ----, 112 S.Ct. at 2037-38. The Court also rejected the

notions that "only state laws specifically addressed to the airline

industry are preempted" and that "preemption is inappropriate when

state and federal law are consistent." Morales, --- U.S. at ----,

112 S.Ct. at 2038. Laws of general applicability, even those

consistent with federal law, are preempted if they have the

"forbidden significant effect" on rates, routes or services. ---

U.S. at ----, 112 S.Ct. at 2039.

The Court acknowledged, however, that "[s]ome state actions

may affect [airline services] in too tenuous, remote or peripheral

a manner" to be preempted. Morales, --- U.S. at ----, 112 S.Ct. at

2040 (quoting Shaw v. Delta Airlines, Inc., 463 U.S. 85, 100 n. 21,

103 S.Ct. 2890, 2901 n. 21, 77 L.Ed.2d 490 (1983)). Refusing to

state exactly where the line would be drawn in a close case, the

Court observed that the facts before it presented no close question

of the connection between the attempted regulation and air fares.

Morales commands that whatever state laws "relate to rates,

routes or services" are broadly preempted, but it does not define

"services." The panel opinion in this case concluded that:

"Services" generally represent a bargained-for or anticipated
provision of labor from one party to another. If the element

4
 of bargain or agreement is incorporated in our understanding
of services, it leads to a concern with the contractual
arrangement between the airline and the user of the service.
Elements of the air carrier service bargain include items such
as ticketing, boarding procedures, provision of food and
drink, and baggage handling, in addition to the transportation
itself. These matters are all appurtenant and necessarily
included with the contract of carriage between the passenger
or shipper and the airline. It is these [contractual]
features of air transportation that we believe Congress
intended to de-regulate as "services" and broadly to protect
from state regulation.

Hodges v. Delta Airlines, Inc., 4 F.3d 350, 354 (5th Cir.1993).

The court adheres to this definition of services en banc, a

definition inferentially reinforced by the Court's decision in

American Airlines, Inc. v. Wolens, --- U.S. ----, ----, --- S.Ct.

----, ----, --- L.Ed.2d ----, 63 U.S.L.W. 4066, 4069 (Jan. 18,

1995) (describing claims concerning American Airlines' frequent

flyer program as related to rates and "services," i.e., access to

flights and class-of-service upgrades ..."). Thus, federal

preemption of state laws, even certain common law actions "related

to services" of an air carrier, does not displace state tort

actions for personal physical injuries or property damage caused by

the operation and maintenance of aircraft. This definition

harmonizes § 1305(a)(1) with other sections of airline regulatory

law, with Congressional intent underlying the ADA, with the

regulatory agencies' understanding of the statute, and with general

principles of federal preemption.

Under the regulatory framework established by the FAA, the

term "service" or "services" had an established definition,

5
consistent with dictionary usage.3 A vestige of that definition

remains in what is left of the federal airline regulatory statutes:

"All-cargo air service" means the carriage by aircraft in
interstate or overseas air transportation of only property or
mail, or both.

49 U.S.C.App. § 1301(11) ("Definitions" section). "Air service"

referred at the time of passage of the ADA to the point-to-point

transportation of passengers, cargo or mail, and it encompassed the

business of transportation as well as the schedules and type of

contract (common carriage or charter). This court interpreted

"service" to embody the airlines' quality of service in such a

fashion as to authorize federal regulation of smoking on commercial

flights. Diefenthal v. C.A.B., 681 F.2d 1039 (5th Cir.1982), cert.

denied, 459 U.S. 1107, 103 S.Ct. 732, 74 L.Ed.2d 956 (1983).4

Following deregulation, the CAB's statements implementing the

ADA strongly support the view that the ADA was concerned solely

with economic deregulation, not with displacing state tort law.

3
Webster's Third New International Dictionary (1976)
includes some of the following definitions:

An action or use that furthers some purpose; supply of
needs [e.g., a vending machine for the service of
passersby]; railroads and telephone companies produce
services—useful labor that does not produce a good;
provision for conducting a public utility [e.g., air
freight service ]; regularly scheduled trip on public
transportation ( [free air services] ).
4
Hodges asserts that Diefenthal supports the position that
notwithstanding § 1305(a)(1), no state tort suit is preempted.
Diefenthal held that two passengers' lawsuit complaining that
they were forced to ride in the "smoking section" of the aircraft
was not within federal jurisdiction based on an insufficient
amount in controversy. The court did not decide and was not
presented with any issue of federal preemption, however, so
Diefenthal is inapposite to construing § 1305(a)(1).

6
The Board concluded that:

preemption extends to all of the economic factors that go into
the provision of the quid pro quo for passenger's [sic] fare,
including flight frequency and timing, liability limits,
reservation and boarding practices, insurance, smoking rules,
meal service, entertainment, [and] bonding and corporate
financing.5

The Federal Aviation Agency, to which some of the Civil

Aeronautics Board's powers were transferred by the ADA, see 49

U.S.C.App. § 1551(b), continues to identify "service" or "services"

in its regulations to incorporate the accoutrements of the

passenger- or shipper- and carrier contract.6

A facile analogy to Morales and the ERISA pre-emption cases

could suggest that "services" includes all aspects of the air

5
44 Fed.Reg. 9948, 9951 (Feb. 15, 1979). The CAB also
opined:

[A] state may not interfere with the services that
carriers offer in exchange for their rates and fares.
For example, liquidated damages for bumping (denial of
boarding), segregation of smoking passengers, minimum
liability for loss, damages and delayed baggage, and
ancillary charges for headsets, alcoholic beverages,
entertainment, and excess baggage would clearly be
"service" regulation within the meaning of section 105.

Id.
6
Specific references to the words "service" or "services" in
the Code of Federal Regulations governing airlines are too
numerous to incorporate here. Some examples include (all within
14 C.F.R.): 14 C.F.R. § 201.1 (domestic all-cargo air service );
§ 201.4(d) (the type of service—passengers, property or mail to
be rendered and whether such services are to be rendered on
scheduled or charter operations); § 204.3(t) (a description of
the service to be operated if an application is granted); §
207.1 (defining special "services"); § 207.13(b) (terms of
service for charter trips); § 207.71(a) (terms of service for
charter trips include those for ground accommodations and
services ); § 217.4(b) (listing classes of service including
scheduled passengers/cargo; scheduled all-cargo, ...
non-scheduled services ...) (emphasis added).

7
carrier's "utility" to its customers, hence, any state tort claim

may "relate to" services as a result of its indirect regulatory

impact on the airline's practices. Taken to its logical extreme,

this argument would suggest that a lawsuit following a fatal

airplane crash could relate to "services".

That Congress did not, however, intend § 1305(a)(1) to

preempt all state claims for personal injury is evident from at

least one other provision of the remaining airline regulatory

statutes. Air carriers are required to maintain insurance or

self-insurance as prescribed by the Federal Aviation Administration

that covers "amounts for which ... air carriers 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 ..." 49 U.S.C.App. § 1371(q) (1994); see

also, 14 C.F.R. § 205.5(a) (1992) (insurance regs.).7 The

importance of § 1371(q) cannot be understated, for it can only be

understood to qualify the scope of "services" removed from state

regulation by § 1305(a)(1). A complete preemption of state law in

this area would have rendered any requirement of insurance coverage

nugatory.

7
Further, § 1506 of the FAA provides that "[n]othing ... in
this chapter shall in any way abridge or alter the remedies now
existing at common law or by statute, but the provisions of this
chapter are in addition to such remedies." 49 U.S.C.App. § 1506.
Before enactment of the ADA, this section permitted limited
economic regulation of intrastate flights and enabled the states
to enforce their general laws against the airlines. The Supreme
Court accounted this provision of marginal significance in
Morales, describing it as a general "saving clause" that cannot
supersede the specific preemption provision. --- U.S. at ----,
112 S.Ct. at 2037.

8
 The FAA further defines "operation of aircraft" as "the use of

aircraft for the purpose of air navigation ... includ[ing] the

navigation of aircraft." 49 U.S.C.App. § 1301(31) (1988). One

uses the overhead luggage racks or the food and beverages provided

in aircraft operation just as one uses the cigarette lighter or

built-in cooler compartment in an automobile, and all these devices

are available to support the general purpose of navigation.

Significantly, too, neither the ADA nor its legislative

history indicates that Congress intended to displace the

application of state tort law to personal physical injury inflicted

by aircraft operations, or that Congress even considered such

preemption.8 See American Airlines v. Wolens, --- U.S. at ---- n.

7, --- S.Ct. at ---- n. 7, 63 U.S.L.W. at 4070 n. 7 (American

Airlines and United States, as amicus curiae, agree it is unlikely

that safety-related personal injury claims arising from airplane

operations are preempted.) "This silence takes on added

significance in light of Congress's failure to provide any federal

remedy for persons injured by such conduct. It is difficult to

believe that Congress would, without comment, remove all means of

judicial recourse for those injured by illegal conduct."9 The

Supreme Court has repeatedly cautioned that federal courts should

8
Compare the ADA with ERISA legislation, in which Congress
provided several federal causes of action to replace the
preempted state causes. See Pilot Life, 481 U.S. at 43-44, 107
S.Ct. at 1551.
9
Silkwood, 464 U.S. at 251, 104 S.Ct. at 623 (citing United
Construction Workers v. Laburnum Construction Corp., 347 U.S.
656, 663-64, 74 S.Ct. 833, 836-38, 98 L.Ed. 1025 (1954)).

9
not displace state police powers by federal law unless that was the

"clear and manifest purpose of Congress." California v. ARC

America Corp., 490 U.S. 93, 102, 109 S.Ct. 1661, 1665, 104 L.Ed.2d

86 (1989) (quoting Rice v. Santa Fe Elevator Corp., 331 U.S. 218,

230, 67 S.Ct. 1146, 1152, 91 L.Ed. 1447 (1947)).10

Delta Airlines agrees that among the "services" deregulated

under the ADA and covered by its preemption clause are the economic

or contractual features of air transportation. Delta argues,

however, that Mrs. Hodges' accident arose out of the "services" of

baggage handling and boarding, not out of the "operation and

maintenance of aircraft" covered by § 1371(q). The "services" that

the state may not regulate under § 1305(a)(1) are distinct from the

"operation and maintenance of aircraft", and all claims related to

"services" are preempted.11

This argument fails on two levels. First, if the statutory

provisions created a strict dichotomy between services and

operation or maintenance of aircraft, Hodges' injury more properly

is laid at the door of operations. Whether certain luggage may be

placed in overhead bins and whether the flight attendants properly

monitor compliance with overhead rack regulations are matters that

10
The Seventh Circuit noted that "[s]tate courts award
damages every day in air crash cases, notwithstanding that
federal law preempts the regulation of safety in air travel,"
confidently adding that "[t]he Federal Aviation Act does not
expressly preempt state damages remedies." Bieneman v. City of
Chicago, 864 F.2d 463, 471 (7th Cir.1988).
11
Delta has thus refined its position again. Only a few
years ago, it defended an injury case very similar to this one
without hinting at a federal preemption defense. Schwamb v.
Delta Airlines, Inc., 516 So.2d 452 (La.Ct.App.1987).

10
pertain to the safe operation of a flight. "Baggage handling" and

"boarding", as referred to in the above-quoted CAB statement,

concern the airline's policy for permitting baggage to be carried

or passengers to be permitted to board. These are aspects of the

"service" offered; they do not refer directly to the way in which

the aircraft is operated.12

Second, as this example shows, the provinces of "services" and

"operation and maintenance of aircraft" overlap somewhat

conceptually; no strict dichotomy exists. There is not, however,

a fundamental inconsistency between the two provisions. By means

of § 1305(a)(1), Congress intended to prevent the states from

regressing on economic deregulation by applying their own laws or

rules concerning "services," but in § 1371(q), Congress explicitly

preserved airlines' duty to respond to tort actions, inferentially

state law actions, for physical injury or property damage.

Finally, unlike the NAAG Guidelines in Morales, enforcement of

tort remedies for personal physical injury ordinarily has no

12
Delta confuses its argument by contending that this state
tort suit should not be permitted to proceed because it could
impose duties that conflict with Federal Aviation Administration
regulations governing carry-on baggage. There are no facts in
the record that intimate the basis for such a conflict.
Moreover, in Cipollone v. Liggett Group, Inc., --- U.S. ----, ---
-, 112 S.Ct. 2608, 2618, 120 L.Ed.2d 407 (1992) (plurality
opinion); id. at ----, 112 S.Ct. at 2625 (Blackmun, J.,
concurring), the Supreme Court held that when Congress has
enacted an explicit preemption provision, courts should not
usually imply broader preemption of state law. See Cipollone, --
- U.S. ----, 112 S.Ct. at 2618 (plurality opinion); id. at ----,
112 S.Ct. at 2625 (Blackmun, J., concurring). Therefore, this
decision of our court does not address the possible preemptive
effect of Federal Aviation Administration safety regulations
governing aircraft and carriers. See Public Health Trust of Dade
Cty., Fla. v. Luke Aircraft, Inc., 992 F.2d 291 (11th Cir.1993).

11
"express reference" to services as defined above. See Morales, ---

U.S. at ----, 112 S.Ct. at 2039. Enforcement of such tort duties

normally will not have "the forbidden significant effect" on

airlines' services. Id. Morales relied in part on the fact that

the state restrictions on airfare advertising had a significant

economic effect on fares. Generally, however, state tort laws

concerning the operation and maintenance of aircraft can be

enforced consistently with and distinctly from the services that

Congress deregulated. Most cases will not pose as close a question

as this one.

But this general vindication of state tort claims arising from

the maintenance or operation of aircraft does not extend to all

conceivable state tort claims. Two examples of the continued scope

of preemption are illustrative. In O'Carroll v. American Airlines,

Inc., 863 F.2d 11 (5th Cir.), cert. denied, 490 U.S. 1106, 109

S.Ct. 3158, 104 L.Ed.2d 1021 (1989), the plaintiff and his cousin

were removed from a commercial airline flight because they were

loud, boisterous, and intoxicated. 863 F.2d at 12. O'Carroll

sued, alleging that he was wrongfully evicted from the flight.

This court vacated O'Carroll's sizeable jury verdict, holding that

his state law claims were preempted by § 1305(a)(1). O'Carroll did

not discuss the scope of § 1305(a)(1) because the state law claims

arising from the alleged wrongful exclusion undeniably related only

to the services provided by the airline. No claim was made that

the airline breached any safety-related tort duty by bumping

O'Carroll. Enforcement of O'Carroll's state law claims would

12
result in significant de facto regulation of the airlines' boarding

practices and, moreover, would interfere with federal law granting

the airlines substantial discretion to refuse to carry passengers.

49 U.S.C.App. § 1511(a).

Similarly, the claims asserted by the plaintiff in West v.

Northwest Airlines, 995 F.2d 148 (9th Cir.1993), cert. denied, ---

U.S. ----, 114 S.Ct. 1053, 127 L.Ed.2d 374 (1994), would be

preempted under our interpretation of "services". Plaintiff West

sued because he was "bumped" from the overbooked airline flight for

which he had reserved a seat. After remand for reconsideration in

light of Morales, the Ninth Circuit held, over a dissent, that

West's state law claims were too tenuously connected to "rates,

routes and services" to be preempted by § 1305(a)(1). The majority

did find West's punitive damage claim preempted. Under either

Morales or the analysis advanced here, it is difficult to see how

a lawsuit for overbooking would not "relate to" the airline's

contract for "services" with its passenger.13

Hodges' Claims

Hodges alleged that Delta was negligent in allowing the case

of rum to be stowed in an overhead storage bin. This tort claim

for personal injury has no specific "reference to" airline

services, see Morales, --- U.S. at ----, 112 S.Ct. at 2039,

although it does derive from the operation of the aircraft. Nor

13
We reiterate our rejection of Hodges' fallback position
that even if federal law completely displaced her state law
claim, an implied private right of action may be inferred from
FAA § 1374(a). Diefenthal v. CAB, supra.

13
would enforcement of her claim significantly affect Delta's

services, as defined above. As other cases have recently held,

this type of claim does not relate to Delta's services and is not

preempted by § 1305(a)(1). See, e.g., Public Health Trust of Dade

Cty., Fla. v. Lake Aircraft, Inc., 992 F.2d 291 (11th Cir.1993);

Margolis v. United Airlines, Inc., 811 F.Supp. 318 (E.D.Mich.1993);

but see Williams v. Express Airlines I, Inc., 825 F.Supp. 831

(W.D.Tenn.1993).

The judgment of the district court is REVERSED, and the case

is REMANDED for further proceedings.

E. GRADY JOLLY, specially concurring:

I concur in the judgment in this case and its companion, Smith

v. America West, --- F.3d ----. I cannot approve, however, of the

rationale used to decide these cases. The majority and the dissent

agree on the principle that a claim is preempted by the ADA express

preemption provision1 if the claim relates to services that are not

a part of the maintenance or operation of an airline; only the

application of this rule prompts the dissent. The fact that the

1
49 U.S.C. § 41713. A week before this case was argued to
the en banc court, Public Law 103-272, which purports to "revise,
codify and enact without substantive change" parts of title 49 of
the United States Code, became effective. As a part of that
codification, the preemption provision at issue here was
redesignated and slightly rewritten. The former provision, 49
U.S.C.App. § 1305, captioned "Federal preemption," provided that,
with exceptions not relevant here,

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 ...

14
majority and the dissent disagree only on the application of this

principle reveals that it promises uncertainty and inconsistent

results.

I would have preferred that we give effect to the plain

language of the ADA preemption provision. Plainly, it preempts

only claims "relating to a price, route, or service" that involve

an instance of a "state ... enact[ing] or enforc[ing] a law,

regulation, or other provision having the force and effect of

law."2 In my view, while these claims are unquestionably related

to a service, they simply do not run afoul of the provision's

prohibition of state-adopted legislation or regulation, or state

enforcement of legislation or regulation. In short, they are not

instances of a state "imposing [its] own substantive standards with

respect to rates routes, or services," which the ADA preemption

provision plainly preempts. American Airlines v. Wolens, 1995 WL

15047, *8, --- U.S. ----, ----, --- S.Ct. ----, ----, --- L.Ed.2d

----. Instead, these suits involve efforts by private individuals

to obtain relief afforded by the common law tort rules of the

state.

According to well-settled principles of statutory

construction, we must not read § 41713 "so as to render another

2
In footnote 5, the American Airlines Court quoted with
approval the statement that the word series "law, rule,
regulation, standard, or other provision having the force and
effect of law" in the predecessor to § 41713 connotes "official
government-imposed policies ... that operate irrespective of any
private agreement." Id. at *6, --- U.S. at ----, --- S.Ct. at --
--. The tort system is not "government-imposed": liability
under the common law for negligence does not depend upon any
expression of a legislative or executive agency of any state.

15
[provision] superfluous." See, e.g., Forsyth v. Barr, 19 F.3d 1527

(5th Cir.1994). In this case, we must read the preemption

provision and the general savings clause3 of the Federal Aviation

Act together "unless there is a "positive repugnancy' between the

two." MCorp Financial v. Board of Governors, 900 F.2d 852, 856

(5th Cir.1990). Indeed, the American Airlines Court relied upon

the general savings clause in its determination that claims by

private individuals to obtain remedies for an asserted breach of

contract as falling outside the sweep of the preemption provision.

I would hold, similarly, that claims by private individuals to

obtain remedies for an asserted breach of the duty of reasonable

care—traditional, well-settled common law tort remedies, in

short—are not preempted by the ADA preemption provision either.

Compare the preemption provisions in Pilot Life Ins. Co. v.

Dedeaux, 481 U.S. 41, 107 S.Ct. 1549, 95 L.Ed.2d 39 (1987);

Cipollone v. Liggett Group, Inc., --- U.S. ----, 112 S.Ct. 2608,

120 L.Ed.2d 407 (1992); and Norfolk & Western R. Co. v. American

Train Dispatchers, 499 U.S. 117, 111 S.Ct. 1156, 113 L.Ed.2d 95

(1991).4

3
49 U.S.C.App. § 1506 provided: "Nothing in this chapter
shall in any way abridge or alter the remedies now existing at
common law or by statute, but the provisions of this Chapter are
in addition to such remedies." As modified and codified (but,
again, without substantive change), the analogous provision is
found at 49 U.S.C. § 40120(c): "A remedy under this part is in
addition to any other remedies provided by law."
4
In Pilot Life Insurance Co. v. Dedeaux, the Court held that
ERISA preempted certain common law tort claims. ERISA expressly
"supersedes any and all state laws" and defines "states laws" as
"all laws, decisions, rules, regulations, or other state action
having the effect of law." 29 U.S.C. § 1144. The preemption

16
provision at issue here, on the other hand, only prohibits the
"enact[ment] or enforce[ment]" of a "law, regulation, or other
provision having the effect of law." Conspicuously absent from
the ADA preemption provision is the word "decisions" or any
reference to decisional law. The majority's interpretation
effectively reads "decisions" into the preemption provision. In
addition to the language of ERISA's preemption statutes, the
Pilot Life Court relied on ERISA's "comprehensive civil
enforcement scheme" to give broad effect to the preemption
provision. The American Airlines Court points out that "[T]he
ADA contains no hint of such a role for the federal courts. In
this regard, the ADA contrasts markedly with ERISA, which does
channel civil actions into federal courts under a comprehensive
scheme, detailed in legislation."

Construing the reference to "law" in the ADA preemption
statute as excluding the common law of a state is consistent
with the Court's construction of the terms "state law" and
"all other law" in the preemption statutes at issue in
Cipollone v. Liggett Group, Inc., --- U.S. ----, ----, 112
S.Ct. 2608, 2620-21, 120 L.Ed.2d 407 (1992), and Norfolk &
Western R. Co. v. American Train Dispatchers, --- U.S. ----,
111 S.Ct. 1156, 113 L.Ed.2d 95 (1991), respectively, both of
which are cited in American Airlines. In Cipollone, the
preemption provision, by its own terms, preempted
"requirement[s] or prohibitions ... imposed under state
law." The Court determined first that the term "requirement
or prohibition" is broad enough to encompass common law
claims; in the cases before us today, however, the ADA
statute preempts only "enact[ments] or enforce[ment]," which
plainly refer to legislative and executive acts. More
significantly, the Cipollone Court found that the phrase
"state law," standing alone, was broad enough to encompass
common law claims in that particular statute. Even in the
newly-minted version of the ADA, however, the term "law"
does not stand alone. Instead, the ADA preemption provision
refers to "law[s], regulation[s], or other provision[s],"
and its predecessor referred to "law[s], regulations,
standards, or other provisions."

In Norfolk & Western R. Co., the preemption statute
exempts railroads from the antitrust laws and "all other
law, including state and municipal law." Giving full effect
to the general term "all other law," the Court held that it
preempted obligations arising under a collective bargaining
agreement because it preempted the underlying contract law
that made the obligation binding. The ADA preemption
statute plainly does not preempt "all other law." Instead,
it preempts merely "law [legislation], regulation, and any
other provision having the force and effect of law." It

17
 This plain language approach does not open the door to all

tort suits. The other provisions of the Federal Aviation Act and

regulations issued thereunder likely will impliedly and sometimes

specifically preempt certain claims that arise under the common law

of a state.5 In the light of that fact, I view the majority's

ascribing a broader sweep to the preemption provision than its

language will admit, and then engrafting upon its own broad

interpretation a series of narrowing distinctions that lack a basis

in the words of the statute and are not susceptible of clear

meaning or certain application. I would prefer, instead of

erecting these tenuous and uncertain judge-made distinctions, to

does not preempt decisional law, which is the source of the
obligations that arise when a passenger is injured.

The well-settled principle that we must give effect to
each word of a statute compels the conclusion that by
specifically referring in the ADA preemption statute to
enacting laws, regulations, and other provisions, and
enforcing laws, regulations, and other provisions, Congress
limited the operation of the ADA preemption statute to
preempt only legislative and executive actions and
enactments. Thus, there are thoroughly convincing reasons
that distinguish the conclusions reached in Cipollone and
Norfolk & Western R. Co. from the conclusion we should reach
today concerning the meaning of the term "law" in the ADA's
preemption provision.
5
O'Carroll, as explained in the footnote 7, illustrates
implied preemption through inconsistency with the Federal
Aviation Act. Furthermore, although the issue is not before us
and we do not decide it today, another example of a common law
claim against an airline that might be impliedly preempted is a
suit alleging breach of contract for "bumping" a duly-ticketed
passenger from a scheduled flight. This claim is likely
preempted by the extensive regulations contained at 14 C.F.R. §
250.

18
rely upon the plain language of the provision as Congress intended6

and enacted it and our other, well-settled, federal preemption

principles. This plain language approach leads to the same result

as the majority, but without wrestling with the questions whether

the suits fall on a particular side of arbitrary and artificial

lines drawn in shifting sand.7

6
The House Report accompanying the enactment of 49
U.S.C.App. § 1305 states that the lack of a clear delineation of
state and federal jurisdiction over airlines had created
"uncertainties and conflicts, including situations in which
carriers have been required to charge different fares for
passengers traveling between two cities, depending on whether
these passengers were interstate passengers whose fares are
regulated by the CAB, or intrastate passengers, whose fare is
regulated by a state." 1978 U.S.C.C. & A.N. 3751-52. To that
end, § 1305 would "prevent conflicts and inconsistent regulations
by providing that when a carrier operates under authority granted
pursuant to ... the Federal Aviation Act, no state may regulate
that carrier's routes, rates or services. * * * The bill also
eliminates Federal jurisdiction over certain service which is
essentially intrastate in nature." Id.

Similarly, the House Conference Report explains that §
1305 "prohibits a state from enacting any law, establishing
any standard determining routes, schedules, or rates, fares,
or charges in tariffs of, or otherwise promulgating economic
regulations for, any air carrier certified by the Board."
Id. at 3804. Nowhere, however, does Congress evidence an
intent to relieve air carriers of their obligation to
exercise reasonable care for the safety of their passengers.

7
A consideration of two cases referred to by the majority
reveals the difficulties created by its departure from the plain
language of the preemption provision. The majority today
overrules Baugh v. Trans World Airlines, 915 F.2d 693 (5th
Cir.1990), and reaffirms O'Carroll v. American Airlines, 863 F.2d
11 (5th Cir.), cert. denied, 490 U.S. 1106, 109 S.Ct. 3158, 104
L.Ed.2d 1021 (1989), but as far as I understand the majority's
approach, it seems to compel an overruling of O'Carroll and a
reaffirmance of Baugh. These cases bear out my expectation that
confusion and uncertainty will ensue from the approach outlined
in the majority's opinions.

In Baugh, a flight attendant stomped on a passenger's

19
foot while engaged in some unspecified activity. We held
that the passenger's claim was preempted because it related
to the services afforded to the passengers on an airline.
In Hodges, the majority specifically includes "provision of
food and drink" in its open-ended definition of services
that are preempted. As far as the majority knows, the
flight attendant in Baugh was engaged in the provision of
food and drink when the injury occurred, which means that
one would assume under the majority's opinion that the cause
of action in Baugh remains preempted. Why, then, does the
majority assume that Baugh must be reversed?

Baugh relied upon O'Carroll. Although both this case
and Smith reaffirm O'Carroll, I am convinced that under the
majority's approach, O'Carroll would be overruled. In that
case, the majority explains, we held that state claims
stemming from an assertedly wrongful exclusion from an
airplane were preempted. The majority states today that
O'Carroll's claims are preempted by the express preemption
provision because they "undeniably relate to services."
Under Smith, however, the majority's explanation is not
sufficient because the probability exists that, although the
claim did relate to services, it implicated safety concerns,
and thus would fall outside the preemption provision. Smith
answers, in an oblique way, that O'Carroll's claims
implicated economic practices as opposed to the safety of
the flight. That answer, however, belies the fact that
O'Carroll and his companion were excluded from the flight,
and later jailed for disorderly conduct, because they were
intoxicated and had been behaving so boisterously that at
one point one of them offered his assistance to the pilot in
flying the plane. Id. at 12. O'Carroll's claims plainly
implicated the safety of the flight. As a consequence,
O'Carroll's suit should not be preempted under the approach
announced by the majority today.

The result in O'Carroll can be reconciled with the
plain language approach suggested by this concurring
opinion. In O'Carroll, we determined that the claims were
preempted for two reasons. First, 49 U.S.C.App. § 1511(a)
granted broad discretion to refuse to transport any
passenger if it "would or might be inimicable to safety of
flight." 863 F.2d at 11-12. Clearly, transporting Carroll
in his condition threatened the safety of the flight.
O'Carroll's claims thus were impliedly preempted by the
separate federal statute. A wholly convincing reason
independent of the express preemption provision thus
justified our determination that O'Carroll's claim was
preempted. Seen in this light, our conclusory statement in
O'Carroll that "[T]here is no need to rely upon inference

20
 PATRICK E. HIGGINBOTHAM, Circuit Judge, with whom EMILIO M.
GARZA, Circuit Judge, joins, dissenting:

Congress has given the courts a difficult interpretation task,

but I cannot agree with the test adopted by my colleagues. We must

decide whether this tort suit questions the operation or

maintenance of the aircraft. It cannot be maintained under state

law unless it does.

Section 1305(a)(1) provides, in part, that "no State ... shall

enact or enforce any law ... relating to rates, routes or services

of any air carrier...." 49 U.S.C.App. § 1305(a)(1). The statute

does not identify what "relating to ... services" means, nor does

it define the term "services." In Morales v. Trans World Airlines,

Inc., --- U.S. ----, 112 S.Ct. 2031, 119 L.Ed.2d 157 (1992), the

Supreme Court interpreted the words of § 1305(a)(1) according to

their ordinary meanings and found that "relating to" means a

"connection with or reference to." Id. at ----, 112 S.Ct. at 2037

(internal quotation marks omitted). Applying the ordinary-meaning

approach, service is "useful labor that does not produce a tangible

commodity." Webster's Third New International Dictionary 2075

(1961).

While the term services must be given its ordinary meaning, it

is clear that Congress did not intend operation or maintenance of

an aircraft to fall within the statute's definition of services,

alone as section 1305 ... expressly preempts state law," and
that "[i]n view of this explicit manifestation of
congressional intent, we conclude that O'Carroll's common
law claims are preempted under § 1305," id. at 13, is
properly regarded as obiter dicta.

21
despite its common sense relationship to provision of services.

Section 1371(q)(1) requires each air carrier to maintain insurance

to cover "amounts for which ... 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." 49 U.S.C.App. § 1374(q)(1) (emphasis

added). We cannot read § 1305(a)(1)'s use of the term services to

include operation or maintenance of an aircraft and give meaning to

§ 1371(q)(1).

The first inquiry is whether the claim, with regulatory

effect, relates to "rates, routes or services." 49 U.S.C.App. §

1305(a)(1). If the claim relates to services, then it is preempted

unless it also results from "the operation or maintenance of

aircraft." Id. § 1371(q)(1). If there is doubt as to whether the

claim results from the operation or maintenance of the aircraft,

that doubt is to be resolved in favor of the operation or

maintenance category. See Cipollone v. Liggett Group, Inc., ---

U.S. ----, ----, 112 S.Ct. 2608, 2618, 120 L.Ed.2d 407 (1992)

(applying "presumption against the preemption of state police

powers"). Thus, preemption turns on whether judicial enforcement

of a claim would regulate and whether the regulation was of the

operation or maintenance of an aircraft.

Reflecting upon the practical reach of a tort claim offers

light to both inquiries. A minerun tort case from Louisiana makes

the point. In Schwamb v. Delta Air Lines, Inc., 516 So.2d 452

(La.Ct.App.1987), writ denied, 520 So.2d 750 (La.1988), Schwamb was

22
injured when a briefcase fell out of an overhead bin and struck him

on the head. Schwamb introduced the testimony of Miller, an expert

in aeronautical engineering, aviation accident investigation and

reconstruction, human factors, crash survivability, safety

engineering, and safety management. Miller testified that the

following steps could have been taken to minimize a passenger's

risk of being struck by objects falling from overhead bins:

(1) A pre-boarding announcement to passengers about how to
load the baggage; e.g. "Put the heavy things on the bottom,
the lighter things on top." (2) A pre-boarding announcement
to passengers to stow their baggage but not to close the
doors. If the doors were open, flight attendants could come
down the aisle before takeoff and check each and every one of
the bins without having to take the time to open closed bins.
(3) A pre-boarding inspection of carry-on baggage, in which
flight attendants check the volume of the luggage as well as
its weight. (4) An on-board announcement by the flight
attendant to passengers, e.g., in conjunction with the safety
briefing concerning oxygen masks and emergency exits. (5) A
warning on the plastic safety card which says something such
as: "Be careful; don't overload bins and use caution when
you use them." (6) A warning or illustration depicting the
proper way to pack an overhead bin. (7) A pre-landing
announcement to passengers concerning the removal of baggage
from the overhead bins. (8) An announcement or warning while
taxiing to the arrival gate when the vast majority of
passengers are still seated, to the effect that passengers
need to be cautious when opening the bins.

Id. at 463. The placement of baggage in an overhead compartment

plainly relates to airline services. State enforcement of the

claim plainly regulates.

Hodges' claim is then preempted unless the activity she

complains of constitutes operation or maintenance of an aircraft.

"Operation of aircraft" means "the use of aircraft, for the purpose

of air navigation and includes the navigation of aircraft." 49

U.S.C.App. § 1301(31). The statute does not define "maintenance of

23
aircraft." Nonetheless, I have little difficulty in concluding

that stowing carry-on items in an overhead compartment is a service

airlines provide for passengers who do not wish to check their

baggage. It does not in any way relate to the navigation or

maintenance of aircraft. Hodges' claim is preempted, and the

judgment of the district court should be affirmed.

24