dissenting.
I must respectfully dissent. It seems to me that the opening of new vistas in private causes of action ought to be approached rather fearfully and with a more tender regard for the acts of Congress and the limitations of the federal bench. The four-factor test of Cort v. Ash has been rather “adjusted” to reach the conclusions the majority pronounces. The trial court concluded that the plaintiffs have failed to meet the second, third and fourth tests of Cort — and with that opinion I agree.
To begin with, on the question of Congressional intent, I am not at all persuaded by the majority’s efforts to brush aside the “expressio unius ” doctrine that has figured so prominently in- the Supreme Court’s most recent efforts to determine whether an implied right of action exists under federal statutes. In National Railroad Passenger Corp. v. National Association of Railroad Passengers, the Court declared that
“when legislation expressly provides a particular remedy or remedies, courts should not expand the coverage of the statute to subsume other remedies. . This principle of statutory construction reflects an ancient maxim — expressio uni-us est exclusio alterius. Since the Act creates a public cause of action for the enforcement of its provisions and a private cause of action only under very limited circumstances, this maxim would clearly compel the conclusion that the remedies created in § 307(a) are the exclusive means to enforce the duties and obligations imposed by the Act.”
414 U.S. 453, 458, 94 S.Ct. 690, 693, 38 L.Ed.2d 646 (1974). Similarly, in the case at hand, Congress has provided a private remedy for violation of section 1371(a) of the FAA, but has not done so for section 1371(n). It seems quite apparent, there*233fore, that in this case, too, the principle of expressio unius “compels the conclusion that the remedies created in [§ 1371(n)] are the exclusive means to enforce the duties and obligations imposed by the Act.”
While finding the argument to be of “some force,” the majority nevertheless insists that expressio unius does not apply, apparently because a private right of action is “consistent” with the underlying purposes of the statute. In this manner, the majority incorporates elements of the third Cort “test” into the second, reasoning that “the two ‘tests’ . . . interrelate in a case such as this.” Such an approach, however, misconceives the essential nature of the inquiry in deciding whether or not the expres-sio unius doctrine applies; for, as the Supreme Court has made clear,
“[an] express statutory provision for one form of proceeding ordinarily implies that no other means of enforcement was intended by the Legislature. That implication would yield, however to ‘clear contrary evidence of legislative intent,’ for which we [turn] to the legislative history and the overall structure of the . Act.”
Securities Investor Protection Corp. v. Barbour, 421 U.S. 412, 419, 95 S.Ct. 1733, 1738, 44 L.Ed.2d 263 (1974) (emphasis supplied) (citations omitted). Thus, in determining the applicability of the expressio unius doctrine, the central question is not whether a private right of action is “consistent” with the purposes or goals of the statute, but rather, whether the overall structure of the Act, or its legislative history, furnish “clear evidence ” of a Congressional intent to create a private remedy. This distinction is crucial, for, as the majority itself apparently concludes, “there is no indication” of such an intent in either the legislative history or the structure of the FA A. It follows from the majority’s own conclusion, therefore, that expressio unius should apply and that the second of the four Cort tests is not met in this case.
Moreover, I cannot agree that a private right of action is even “consistent” with the structure and goals of the FAA. On this point, the majority appears to suggest that private remedial measures are necessary to further the Congressional purpose of protecting travelers from “losses due to violations of the Charter Regulations.” But even if a major purpose of the Act is to protect travelers from such losses (and even if the majority is correct in claiming that the CAB may not be able to sue for a refund of tour deposits), it does not follow that a private remedy is consistent with the statutory scheme. In Securities Investor Protection, supra, the Court noted that
“Congress’ primary purpose in enacting the SIPA and creating the SIPC was, of course, the protection of investors. It does not follow, however, that an implied right of action by investors who deem themselves to be in need of the Act’s protection, is either necessary to or indeed capable of furthering that purpose.”
421 U.S. at 421, 95 S.Ct. at 1739. In this case, Congress has explicitly granted to the CAB the authority to enforce the statute and regulations at issue, and to seek an injunction against any further violations. 49 U.S.C. § 1487(a). Moreover, as was noted above, there is no extrinsic evidence that Congress contemplated the agency enforcement to be anything other than exclusive. I therefore find no basis for the majority’s conclusion that a private right of action is “consistent” with the statutory scheme.
Finally, it seems to me that this cause of action is a matter “traditionally relegated to state law,” and thus fails to satisfy the fourth requirement of Cort. The majority reaches the opposite conclusion on the grounds, apparently, that there is a need for “uniformity” in construing federal regulations. What the opinion fails to make clear, however, is precisely why an adjudication of the plaintiffs’ common law claims of fraud, breach of contract, conversion, and breach of fiduciary duty, would “necessarily have to refer to the federal regulations subsumed in the agreements between the principals.” To say that federal regulations required the bank to assume certain legal obligations to the tour operator (and hence the tour participants) is one thing. To say that the regulations defined those *234obligations is quite another. And for my part, I can see no reason why a determination of the plaintiffs’ non-federal claims would require anything other than the application of familiar principles of common law contracts and torts. I must conclude, therefore, that the fourth element of the Cort test, like the second and third, furnishes no support for the plaintiffs’ position.
Regulatory agencies, and the rules they function under should not, it seems to me, be the launching pads for new judicial journeys that add more ballast to an already overburdened federal system of dispensing justice.
I would affirm the trial court’s decision that found no private cause of action exists under the regulations in question.