                                                                                                                           Opinions of the United
1999 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


6-23-1999

Abdullah v. Amer Airlines Inc
Precedential or Non-Precedential:

Docket 98-7055




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Filed June 23, 1999

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

Nos. 98-7055 and 98-7056

KHALED ABDULLAH; KHITHAM ABDULLAH;

v.

AMERICAN AIRLINES, INC.

(D.Ct. No. 91-cv-00277)

AUDREY JAMES; EARDLEY JAMES;
VELMA GEORGE; KOTNIE GEORGE

v.

AMERICAN AIRLINES, INC.

(D.Ct. No. 93-cv-00108)

       Khaled Abdullah and
       Khitham Abdullah,

       Appellants (No. 98-7055)

       Audrey James, Eardley James,
       Velma George and Kotnie George,

       Appellants (No. 98-7056)

On Appeal from the Appellate Court of the
District Court of the Virgin Islands
Division of St. Croix
District Judge: Honorable Raymond L. Finch
(D.C. Civil Action No. 91-cv-00277)

Argued December 10, 1998

Before: ROTH, LEWIS and GARTH, Circuit Judges

(Opinion filed: June 23, 1999)
       Gordon C. Rhea, Esquire (Argued)
       Alkon, Rhea & Hart
       2115 Queen Street
       Christiansted, St. Croix
       USVI, 00820

       Lee Rohn, Esquire
       Maurice J. Cusick, Esquire (Argued)
       Rohn & Cusick
       1101 King Street
       Christiansted, St. Croix
       USVI, 00820

        Attorneys for Appellants

       R. Eric Moore, Esquire
       Law Office of R. Eric Moore
       Downtown Station
       P.O. Box 3086
       Christiansted, St. Croix
       USVI, 00822

       Jeffrey J. Ellis, Esquire (Argued)
       Quirk & Bakalor
       845 Third Avenue
       New York, NY 10022

        Attorneys for Appellee

OPINION OF THE COURT

ROTH, Circuit Judge:

After a jury had awarded plaintiffs-appellants Khaled
Abdullah, Audrey James, Eardley James, and Velma George
damages for injuries sustained during an American Airlines
flight, the District Court of the Virgin Islands, Division of
Saint Croix, ordered a new trial. The court's action was
based on its conclusion that it had improperly relied upon
territorial common law to establish the standards of care
that were used by the jury to determine that negligence on
the part of American Airlines' employees had caused
appellants' injuries. Abdullah v. American Airlines, Inc., 969
F. Supp. 337, 340-41 (D.V.I. 1997). The court found that

                                 2
the 1958 Federal Aviation Act, Pub. L. No. 85-726, 72 Stat.
731, (codified as amended at 49 U.S.C. SS 40101-49105)
(FAA), implicitly preempts territorial standards for aviation
safety,1 and that the jury should not have been instructed
on a territorial law standard of care. Abdullah, 969 F. Supp.
at 341. Concluding that the error regarding federal
preemption resulted in the admission of evidence on
standards of care that was not limited to federally
established standards of care and that this evidence was
prejudicial, the court ordered a new trial. Id . at 340. At
plaintiffs' request, the District Court then certified the
following issue for appeal:

       Does federal law preempt the standards for air safety,
       but preserve State and Territorial damage remedies?

We will answer both parts of this certified question with
a "yes." As to the first part of the question, contrary to
courts that have found that federal law does not preempt
state and territorial air safety standards, or that federal law
only preempts discrete aspects thereof, we find implied
federal preemption of the entire field of aviation safety. As
to the second part, we conclude that, despite federal
preemption of the standards of care, state and territorial
damage remedies still exist for violation of those standards.

Our finding on preemption is based on our determination
that the FAA and relevant federal regulations establish
complete and thorough safety standards for interstate and
international air transportation and that these standards
are not subject to supplementation by, or variation among,
_________________________________________________________________

1. Subsequent to the trial in the case at bar but prior to the resolution
of American's post-trial motions, American proceeded with related
litigation in the Southern District of New York. In that case, the
District
Court rejected American's contention that federal law preempts aviation
safety. Trinidad v. American Airlines, 932 F. Supp. 521 (S.D.N.Y. 1996).
However, after issuing that decision and initially deciding not to certify
an interlocutory appeal, the District Court issued an Order holding that
the preemption of aviation safety is an open question which it then
certified for interlocutory appeal to the Second Circuit. The Second
Circuit decided not to address the issue at that time. In order to avoid
duplicative trial costs, all parties then agreed to not try liability and
to
be bound by the ultimate liability result in the case pending in the
Virgin
Islands.

                               3
jurisdictions. Thus, we agree with the District Court that it
was error to rely upon territorial safety standards in
determining American Airlines' liability in this case.

In coming to our conclusion on preemption, we do not,
however, agree with the narrow nature of the federal
standard set out by the District Court. We conclude instead
that there is an overarching general standard of care under
the FAA and its regulations. This standard arises in
particular from 14 C.F.R. S 91.13(a): "No person may
operate an aircraft in a careless or reckless manner so as
to endanger the life or property of another." Thus, we do
not agree with the District Court's determination that
evidence on "reasonable standard of care" should
necessarily have been excluded -- as long as a "reasonable
standard of care" is compatible with an avoidance of
carelessness or recklessness in the operation of the aircraft.2
We will remand this case to the District Court to review
both the testimony and the jury instructions on standards
of care in order to determine if they are consistent with the
standards we set out here. If they are, the jury verdict
should be reinstated. If they are not, the District Court
should proceed with a new trial, and in that trial the court
should follow the federal standards as we establish them
here.

I. Background

Plaintiffs Khaled Abdullah, Audrey James, Eardley
James, and Velma George were passengers on American
Airlines Flight 1473 from New York to San Juan, Puerto
Rico, on August 28, 1991. En route, the aircraft
encountered severe turbulence which caused serious
injuries to a number of passengers, including the plaintiffs.
The First Officer had noticed a weather system developing
in the flight path and had illuminated the seatbelt sign. He
had also gone to the back of the aircraft to warn the flight
attendants that the ride could get choppy in ten minutes.
None of the crew, however, alerted the passengers of the
expected turbulence. Nor did the pilot change course in
_________________________________________________________________

2. See our discussion at pp. 15-16.

                               4
order to avoid the storm. Some of the injured passengers
were wearing their seatbelts; some were not.

Plaintiffs filed two separate lawsuits against defendant
American Airlines, Inc., alleging negligence on the part of
the pilot and flight crew in failing to take reasonable
precautions to avoid the turbulent conditions known to
them and in failing to give warnings reasonably calculated
to permit plaintiffs to take steps to protect themselves.3

A jury trial commenced on August 7, 1995, in the District
Court of the Virgin Islands, Division of Saint Croix. The
plaintiffs' cases were consolidated for trial. On August 25,
1995, the jury found American liable, found plaintiffs to be
without any contributory fault, and awarded monetary
damages aggregating more than two million dollars.

American filed a post-trial motion which requested
dismissal and/or a new trial plus attorney's fees and costs.
Among the grounds asserted was that the District Court
had improperly used territorial common law to establish
the standards of care for the pilots, flight attendants, and
passengers. American argued that the FAA implicitly
preempts the standards for airline safety.

The District Court issued an Opinion on June 5, 1997,
holding that the FAA impliedly preempts state and
territorial regulation of aviation safety and standards of
care for pilots, flight attendants, and passengers, but that
plaintiffs may recover under state and territorial law for
violation of federal standards. Abdullah, 969 F. Supp. at
341. The District Court held that its error of law regarding
preemption, which resulted in admission of evidence
regarding standards other than the federal standards,
warranted a new trial.

Upon motion of the plaintiffs, the District Court certified
this issue for interlocutory review. We granted interlocutory
review.
_________________________________________________________________

3. The two cases were previously before this Court when American
petitioned for a Writ of Mandamus to transfer the cases to New York. The
petition was denied on May 17, 1995. Abdullah v. AMR Corp., 60 F.3d
813 (3d Cir. 1995).

                               5
II. Jurisdiction and Standard of Review

Subject matter jurisdiction in the District Court rested on
diversity of citizenship. 28 U.S.C. S 1332.

We accepted jurisdiction over this matter pursuant to 28
U.S.C. S 1292(b), which permits us to accept an
interlocutory appeal where there is "substantial ground for
a difference of opinion" on an issue and "an immediate
appeal . . . may materially advance the ultimate termination
of the litigation."

The appeal involves a question of law, so that the
standard of review is plenary. Epwright v. Environmental
Resources Management, Inc. Health & Welfare Plan, 81 F.3d
335, 339 (3d Cir. 1996); Epstein Family Partnership v.
Kmart Corp., 13 F.3d 762, 765-66 (3d Cir. 1994).

The scope of review is not limited to the issues
articulated in the section 1292(b) certification motion. "As
the text of S 1292(b) indicates, appellate jurisdiction applies
to the order certified to the court of appeals, and is not tied
to the particular question formulated by the district court."
Yamaha Motor Corp. v. Calhoun, 516 U.S. 199, 205 (1996).
"[T]he appellate court may address any issue fairly included
within the certified order because `it is the order that is
appealable, and not the controlling question identified by
the district court.' " Id. (quoting 9 J. Moore & B. Ward,
Moore's Federal Practice P 110.25[1], p. 300 (2d ed. 1995)).

III. Discussion

The power of Congress to preempt state law derives from
the Supremacy Clause of Article VI of the Constitution,
which provides that the laws of the United States "shall be
the supreme Law of the Land; . . . any Thing in the
Constitution or Laws of any state to the Contrary
notwithstanding." U.S. Const. Art. VI, cl. 2. "Consideration
of issues arising under the Supremacy Clause `start[s] with
the assumption that the historic police powers of the States
[are] not to be superseded by . . . Federal Act unless that
[is] the clear and manifest purpose of Congress'." Cipollone
v. Liggett Group, Inc., 505 U.S. 504, 516 (1992) (quoting
Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230 (1947)).

                               6
"Accordingly, `[t]he purpose of Congress is the ultimate
touchstone' of pre-emption analysis." Id. (citation omitted).
The Supreme Court has cautioned that "despite the variety
of these opportunities for federal preeminence, we have
never assumed lightly that Congress has derogated state
regulation, but instead have addressed claims of pre-
emption with the starting presumption that Congress does
not intend to supplant state law." New York State Conf. of
Blue Cross & Blue Shield Plans v. Travelers Ins. Co., 514
U.S. 645, 654 (1995). The Court in Cipollone stated the test
for preemption:

       Congress' intent may be "explicitly stated in the
       statute's language or implicitly contained in its
       structure and purpose." Jones v. Rath Packing Co., 430
       U.S. 519, 525 (1977). In the absence of an express
       congressional command, state law is pre-empted if that
       law actually conflicts with federal law, see Pacific Gas
       & Elec. Co. v. State Energy Resources Conservation and
       Dev. Comm'n, 461 U.S. 190, 204 (1983), or if federal
       law so thoroughly occupies a legislative field" `as to
       make reasonable the inference that Congress left no
       room for the States to supplement it'." Fidelity Fed.
       Sav. & Loan Assn. v. De la Cuesta, 458 U.S. 141, 153
       (1982) (quoting Rice v. Santa Fe Elevator Corp., 331
       U.S. at 230).

505 U.S. at 516.

The instant case concerns the species of preemption
known as field preemption. Field preemption occurs if
federal law "thoroughly occupies" the "legislative field" in
question, i.e., the field of aviation safety. The Supreme
Court has characterized field preemption in this way:

       Congress implicitly may indicate an intent to occupy a
       given field to the exclusion of state law. Such a
       purpose properly may be inferred where the
       pervasiveness of the federal regulation precludes
       supplementation by the States, where the federal
       interest in the field is sufficiently dominant, or where
       "the object sought to be obtained by the federal law
       and the character of obligations imposed by it . . .
       reveal the same purpose."

                               7
Schneidewind v. ANR Pipeline Co., 485 U.S. 293, 300 (1988)
(quoting Rice, 331 U.S. at 230).4 Thus, implied federal
preemption may be found where federal regulation of a field
is pervasive, Rice, 331 U.S. at 230, or where state
regulation of the field would interfere with Congressional
objectives. See Silkwood v. Kerr-McGee Corp., 464 U.S. 238,
248 (1984).

Our finding of implied field preemption here is based on
our conclusion that the FAA and relevant federal
regulations establish complete and thorough safety
standards for interstate and international air transportation
that are not subject to supplementation by, or variation
among, jurisdictions. While some courts have found federal
law to preempt discrete aspects of air safety, e.g. French v.
Pan Am Express, Inc., 869 F.2d 1 (1st Cir. 1989); World
Airways, Inc. v. International Bhd. of Teamsters, 578 F.2d
800 (9th Cir. 1978); Kohr v. Allegheny Airlines, Inc., 504
F.2d 400 (7th Cir. 1974), we hold that federal law
establishes the applicable standards of care in thefield of
air safety, generally, thus preempting the entirefield from
state and territorial regulation.

In regard, however, to the second part of the certified
question, although the term "field preemption" suggests a
broad scope, the scope of a field deemed preempted by
federal law may be narrowly defined. For instance, in In re
TMI Litigation Cases Consolidated II, 940 F.2d 832, 859 (3d
Cir. 1991) (TMI II), and In re TMI, 67 F.3d 1103, 1106-07
(3d Cir. 1995) (TMI III), we held that federal regulation of
nuclear safety preempted state tort law on the standard of
care. Still, even though federal law controlled the standard
of care, we held that the question whether causation and
damages were federally preempted was a separate
consideration. See TMI III, 67 F.3d at 1107.

Similarly, in the instant case, we find that Congress, in
enacting the FAA and relevant regulations, intended
generally to preempt state and territorial regulation of
aviation safety. Nevertheless, we find that plaintiffs may
_________________________________________________________________

4. State common law rules may be preempted in the same ways as state
statutes or regulations. Public Health Trust v. Lake Aircraft, Inc., 992
F.2d 291, 294 (11th Cir. 1993) (citing Cipollone, 505 U.S. at 523).

                               8
recover damages under state and territorial remedial
schemes.

In coming to our answers to the certified question, we
depart from the precedent established by a number of cases
which hold that federal law does not preempt any aspect of
air safety. See In re Air Crash Disaster at John F. Kennedy
Int'l Airport, 635 F.2d 67, 74-75 (2d Cir. 1980); Trinidad v.
American Airlines, 932 F. Supp. 521 (S.D.N.Y. 1996); In re
Air Crash Disaster at Stapleton Int'l Airport, 721 F. Supp.
1185, 1187 (D. Colo. 1988). As explained below, we find
these cases to be unpersuasive, either because these courts
presumed, without deciding through in-depth analysis, that
the FAA did not preempt state or territorial air safety
standards, or because these courts followed the preemption
language of the Airline Deregulation Act, 49 U.S.C.
S 41713(b)(1) (formerly S 1305(a)(1)) (ADA), an economic
deregulation statute that we find inapposite to resolving
preemption questions relating to the safety of air
operations. Cf. Taj Mahal Travel, Inc. v. Delta Airlines, Inc.,
164 F.3d 186, 190-95 (3d Cir. 1998) (finding that
defamation action was not preempted by the ADA because
it did not involve a regulatory or public utility function). We
conclude that Congress's intent to preempt state and
territorial regulations of air safety is not affected by the
language of the ADA.

A. Federal Preemption of Air Safety Standards

1. Field Preemption

As the District Court set out in its thorough examination
of the legislative history, the FAA was enacted in response
to a series of "fatal air crashes between civil and military
aircraft operating under separate flight rules." United States
v. Christensen, 419 F.2d 1401, 1404 (9th Cir. 1969)
(quoting 1958 U.S.C.C.A.N. 3741, 3742). Congress's
purpose in enacting the FAA was "to promote safety in
aviation and thereby protect the lives of persons who travel
on board aircraft." In re Mexico City Aircrash of October 31,
1979, 708 F.2d 400, 406 (9th Cir. 1983); accord Rauch v.
United Instruments, Inc., 548 F.2d 452, 457 (3d Cir. 1976).

Congress found the creation of a single, uniform system
of regulation vital to increasing air safety. City of Burbank

                               9
v. Lockheed Air Terminal, Inc., 411 U.S. 624, 639 (1973)
(noting that "a uniform and exclusive system of federal
regulation" is required "if the congressional objectives
underlying the [FAA] are to be fulfilled"); Christensen, 419
F.2d at 1404 (remarking that "the whole tenor of the [FAA]
and its principal purpose is to create and enforce one
unified system of flight rules"). By enacting the FAA,
Congress intended to rest sole responsibility for supervising
the aviation industry with the federal government:

       [A]viation is unique among transportation industries in
       its relation to the federal government--it is the only
       one whose operations are conducted almost wholly
       within federal jurisdiction, and are subject to little or
       no regulation by States or local authorities. Thus,
       the federal government bears virtually complete
       responsibility for the promotion and supervision of this
       industry in the public interest.

S.Rep. No. 1811, 85th Cong., 2d Sess. 5 (1958).

Similarly, the House Report accompanying the FAA
indicates that one of the purposes of the Act is to give "[t]he
Administrator of the new Federal Aviation Agency 5 . . . full
responsibility and authority for the advancement and
promulgation of civil aeronautics generally, including
promulgation and enforcement of safety regulations."
H.R.Rep. No. 2360, reprinted in 1958 U.S.C.C.A.N. 3741,
3741. In addition, in a letter included as part of the House
Report, the Airways Modernization Board Chairman wrote:
"It is essential that one agency of government, and one
agency alone, be responsible for issuing safety regulations
if we are to have timely and effective guidelines for safety in
aviation." Id. at 3761.

Thus, legislative history reveals that Congress intended
the Administrator, on behalf of the Federal Aviation
Administration, to exercise sole discretion in regulating air
_________________________________________________________________

5. Originally called the Federal Aviation Agency, it was later renamed the
Federal Aviation Administration and made part of the Department of
Transportation. Department of Transportation Act, Pub.L. No. 89-670,
SS 3(e)(1), 6(c)(1), 80 Stat. 931, 932, 938 (1966) (codified as amended in
scattered sections of 49 U.S.C.).

                               10
safety. And this is exactly what Congress accomplished
through the FAA. Congress enacted Chapter 447, Safety
Regulation, and directed the Administrator to "carry out
this chapter in a way that best tends to reduce or eliminate
the possibility or recurrence of accidents in air
transportation." 49 U.S.C. S 44701(c). See City of Burbank,
411 U.S. at 627 (noting that Congress gave the
Administrator of the Federal Aviation Administration "broad
authority" with respect to air safety standards).

To effectuate this broad authority to regulate air safety,
the Administrator of the FAA has implemented a
comprehensive system of rules and regulations, which
promotes flight safety by regulating pilot certification,6 pilot
pre-flight duties,7 pilot flight responsibilities,8 and flight
rules.9

The federal courts that adjudicated the first major cases
involving the FAA interpreted its legislative history as
evincing Congress's intent to exercise supremacy over the
field of aviation safety. For instance, just after the passage
of the FAA, the Second Circuit Court of Appeals remarked:
"The Federal Aviation Act was passed by Congress for the
purpose of centralizing in a single authority--indeed, in one
administrator--the power to frame rules for the safe and
_________________________________________________________________

6. For example, 14 C.F.R. S 61.3 (1996) provides:

         No person may act as pilot in command, or in any other capacity as
         a required pilot flight crew member of a civil aircraft of United
States
         registry unless he has in his personal possession a current pilot
         certificate issued to him under this part.

7. For example, before flight the pilot must review available information
concerning the flight, 14 C.F.R. S 91.103 (1996), verify the aircraft's
worthiness, 14 C.F.R. S 91.7 (1996), and ensure that passengers are
briefed on the use of their seatbelts, 14 C.F.R. S 91.107 (1996).

8. For example, according to 14 C.F.R. S 91.13, "[n]o person may operate
an aircraft in a careless or reckless manner so as to endanger the life or
property of another." 14 C.F.R. S 91.13 (1996). Furthermore 14 C.F.R.
S 91.7 mandates that "[t]he pilot in command shall discontinue the flight
when unairworthy mechanical, electrical, or structural conditions occur."

9. 14 C.F.R. S 91.101 states: "This subpart prescribes flight rules
governing the operation of aircraft within the United States and within
12 nautical miles from the coast of the United States."

                                 11
efficient use of the nation's airspace." Air Line Pilots Ass'n,
Int'l v. Quesada, 276 F.2d 892, 894 (2d Cir. 1960).

Then, in City of Burbank, the Supreme Court held that
Congress's consolidation of control of aviation in one
agency indicated its intent to federally preempt aviation
safety. 411 U.S. at 639. In reaching this decision, the Court
first noted that the Solicitor General had conceded that
airspace management was federally preempted. Id. at 627.
Finding this to be a "fatal concession," the Court held that
state noise regulation was federally preempted because of
its interrelationship with airspace management. Id. at 627-
28. Although he dissented in City of Burbank, Justice
Rehnquist agreed with the majority on the issue of federal
preemption, noting that "Congress clearly intended to pre-
empt the States from regulating aircraft in flight." 411 U.S.
at 644. According to Justice Rehnquist,

       The 1958 Act was intended to consolidate in one
       agency in the Executive Branch the control over
       aviation that had previously been diffused within that
       branch. The paramount substantive concerns of
       Congress were to regulate federally all aspects of air
       safety, . . . and, once aircraft were in "flight," air-space
       management . . ..

Id. (emphasis added).10
_________________________________________________________________

10. The decision in City of Burbank, regarding federal preemption,
affirmed sentiments that, prior to the passage of the FAA, the Court had
expressed regarding the nature of aviation. For instance, in Northwest
Airlines, Inc v. Minnesota, 322 U.S. 292, 303 (1944), Justice Jackson, in
a concurrence, expressed the view that federal aviation by nature admits
to only one uniform system of safety standards. He remarked:

       Federal control is intensive and exclusive. Planes do not wander
       about in the sky like vagrant clouds. They move only by federal
       permission, subject to federal inspection, in the hand of federally
       certified personnel and under an intricate system of federal
       commands. The moment a ship taxis onto a runway it is caught up
       in an elaborate and detailed system of controls. It takes off only
by
       instruction from the control tower, it travels on prescribed beams,
it
       may be diverted from its intended landing, and it obeys signals and
       orders. Its privileges, rights and protection, so far as transit is
       concerned, it owes to the Federal Government alone and not to any
       state governments.

                               12
In Kohr v. Allegheny Airlines, Inc., 504 F.2d 400 (7th Cir.
1974), a mid-air collision case, the Seventh Circuit found
the rights and liabilities of the parties to be federally
preempted. The court wrote of Congress's objective in
enacting the FAA: "[T]he principal purpose of the [FAA] is to
create one unified system of flight rules and to centralize in
the Administrator of the Federal Aviation Administration
the power to promulgate rules for the safe and efficient use
of the country's airspace." Id. at 404. The court found a
"predominant, indeed almost exclusive, interest of the
federal government in regulating the affairs of the nation's
airways." Id. at 403.

Similarly, the Second Circuit recognized the broad scope
of the FAA and its implied federal preemption of state air
safety standards in British Airways Bd. v. Port Authority of
New York, 558 F.2d 75 (2d Cir. 1977), and held that, by
enacting the 1968 noise control amendments to the FAA,
Congress "intended to strengthen the FAA's regulatory role
within the area already totally preempted--control of flights
through navigable airspace." Id. at 84; see also id. at 83
(stating that without federal preemption, "[t]he likelihood of
multiple, inconsistent rules would be a dagger pointed at
the heart of commerce--and the rule applied might come
literally to depend on which way the wind was blowing.").

The understanding of the courts in these early cases that
the FAA's broad scope implied federal preemption of
aviation safety standards, has been affirmed over time. In
recent decades, courts of appeals have found implied
federal preemption of various aspects of air safety that
states have attempted to regulate. For example, the First
Circuit in French v. Pan Am Express, Inc., 869 F.2d 1 (1st
Cir. 1989), found pilot regulation, which related to air
safety, to be federally preempted. Id. at 6. The court held
_________________________________________________________________

322 U.S. at 303. This statement was cited by the Court in City of
Burbank, 411 U.S. at 638. See also Chicago & Southern Air Lines, Inc. v.
Waterman S.S. Corp., 333 U.S. 103, 107 (1948) (noting that the nature
of aviation "called for a more penetrating, uniform and exclusive
regulation by the nation than had been thought appropriate for the more
easily controlled commerce of the past.").

                               13
that "such an intent is implicit in the pervasiveness of
relevant federal regulation, the dominance of the federal
interest, and the legislative goal of establishing a single,
uniform system of control over air safety." Id. at 6-7. The
court explained:

       The intricate web of statutory provisions affords no
       room for the imposition of state law criteria vis-a-vis
       pilot suitability. We therefore conclude, without serious
       question, that preemption is implied by the
       comprehensive legal scheme which imposes on the
       [Administrator] the duty of qualifying pilots for air
       service.

Id. at 4.

Because the legislative history of the FAA and its judicial
interpretation indicate that Congress's intent was to
federally regulate aviation safety, we find that any state or
territorial standards of care relating to aviation safety are
federally preempted. Our analysis is sustained by reference
to the broad scope of the FAA, described above. It also is
supported by decisions in which courts found federal
preemption of discrete, safety-related matters, such as
airspace management, flight operations, and aviation noise,
because of the promulgation of specific federal regulations
over those aspects of air safety. See, e.g., City of Burbank,
411 U.S. at 633; San Diego Unified Port Dist. v. Gianturco,
651 F.2d 1306, 1316 (9th Cir. 1981); Price v. Charter
Township, 909 F. Supp. 498 (E.D. Mich. 1995); see also id.
at 1351 n.22 (citing numerous cases in which the courts
held flight control regulation to reduce noise federally
preempted); Gustafson v. City of Lake Angelus , 76 F.3d
778, 786 (6th Cir. 1996) (stating in dictum that "[federal]
regulations preempt local law in regard to aircraft safety,
the navigable airspace, and noise control"); id. at 792
(Jones, J., concurring) (agreeing with the majority that local
land and water use are not preempted, but that aviation
safety, navigable airspace and noise control are preempted).

It follows from the evident intent of Congress that there
be federal supervision of air safety and from the decisions
in which courts have found federal preemption of discrete,
safety-related matters, that federal law preempts the

                               14
general field of aviation safety. Indeed, it would be illogical
to conclude that, while federal law preempts state and
territorial regulation of matters such as pilot licensing, it
does not preempt regulations relating to the exercise of the
specific skill for which licensing is necessary--pilots'
operation of aircraft.

Moreover, our move from specific to general regulation is
not without support in FAA regulations themselves. For
example, 14 C.F.R. S 91.13(a), which governs "Careless or
Reckless Operation," supplies a comprehensive standard of
care to be exercised by pilots and flight crew. It provides,
"No person may operate an aircraft in a careless or reckless
manner so as to endanger the life or property of another."
In a case then where there is no specific provision or
regulation governing air safety, S 91.13(a) provides a general
description of the standard required for the safe operation
of aircraft.

Thus, in determining the standards of care in an aviation
negligence action, a court must refer not only to specific
regulations but also to the overall concept that aircraft may
not be operated in a careless or reckless manner. The
applicable standard of care is not limited to a particular
regulation of a specific area; it expands to encompass the
issue of whether the overall operation or conduct in
question was careless or reckless. Moreover, when a jury is
determining what constitutes careless or reckless operation
of an aircraft, expert testimony on various aspects of
aircraft safety may be helpful to the jury. In the present
case, for example, the regulations on the use of seat belts
and on the illumination of the "fasten seat belt" sign11 set
the standard for determining both whether American
_________________________________________________________________

11. FAA regulations require passengers to wear their seat belts when the
seat belt sign is illuminated:

       [T]he "Fasten Seat Belt" sign shall be turned on during any
       movement on the surface, for each takeoff, for each landing, and at
       any other time considered necessary by the pilot in command. . . .
       Each passenger . . . shall fasten his or her safety belt around him
       or her and keep it fastened while the "Fasten Seat Belt" sign is
       lighted.

14 C.F.R. S 121.317(b), (f).

                               15
operated the aircraft carelessly or recklessly and whether
the passengers, who had not fastened their seatbelts, were
contributorily negligent. In addition, expert testimony may
help the jury to understand whether the way in which
warnings of turbulence and/or illumination of seatbelt
signs were conveyed to the passengers constituted careless
or reckless operation.

We conclude, therefore, that because of the need for one,
consistent means of regulating aviation safety, the standard
applied in determining if there has been careless or reckless
operation of an aircraft, should be federal; state or
territorial regulation is preempted.

B. Divergent Authority

Despite the legislative history and interpreting authority
which have informed our decision, many courts have held
that the field of aviation safety is not federally preempted.
We find, however, that the rationales, on which these
courts have relied in reaching this conclusion, are
unpersuasive. As explained below, either the courts have
presumed, without any in-depth analysis, that the FAA
does not preempt state or territorial air safety standards, or
they have followed precedent involving the ADA, an
economic deregulation statute which is inapposite to
resolving preemption questions relating to the FAA and air
safety. We will deal with these various rationales in turn.

a. Expressio Unius Est Exclusio Alterius

Expressio unius est exclusio alterius is a Latin maxim
which means "to express one is to exclude the other." As
with all easy answers, it should be taken with a grain of
salt -- or even better, with a grain of common sense.

The maxim has been employed by some courts to justify
a decision that air safety standards are not federally
preempted. The main rationale for such a finding rests on
Section 105(a)(1) of the ADA, which provides that the
regulation of "rates, routes, and services" is expressly
preempted.12 Based on the language of this section, some
_________________________________________________________________

12. Section 105(a)(1) of the ADA provides:

                               16
courts have observed that state tort law claims for personal
injuries connected to airline operations are not preempted.
See, e.g., Hodges v. Delta Airlines, Inc., 44 F.3d 334, 338
(5th Cir. 1995); Margolis v. United Airlines, Inc., 811 F.
Supp. 318, 321-22 (E.D. Mich.1993) (holding that"nowhere
in the legislative history or in the evolution of the [FAA] is
there any suggestion that the preemption provision of the
[ADA] was intended to preclude common law negligence
actions" and collecting cases); see also American Airlines,
Inc. v. Wolens, 513 U.S. 219, 231, n.7 (1995) (noting that
the United States as Amicus Curiae had conceded that"[i]t
is ... unlikely that [the ADA] preempts safety-related
personal injury claims relating to airplane operations").
Such a result may not, of course, be inconsistent with our
determination that even with federal preemption of
standards of care, state tort remedies are preserved. A
number of courts have, however, continued to use the state
law standard of care, along with state remedies. They have
concluded that the standards of care related to aviation
safety by implication must not be preempted because
expressio unius est exclusio alterius. See, e.g., Public Health
Trust v. Lake Aircraft, Inc., 992 F.2d 291, 294-95 (11th Cir.
1993); Cleveland v. Piper Aircraft Corp., 985 F.2d 1438,
1443-44 (10th Cir. 1993).

We agree with American that reliance on this maxim to
determine whether safety standards are federally preempted
is inappropriate. This maxim "stands on the faulty premise
that all possible alternatives or supplemental provisions
were necessarily considered and rejected by the legislative
draftsmen." National Petroleum Refiners Ass'n v. F.T.C., 482
F.2d 672, 676 (D.D.C.1973). The maxim "serves only as an
aid in discovering the legislative intent when that is not
otherwise manifest." United States v. Barnes, 222 U.S. 513,
519 (1912). For that reason, it "can never override clear and
_________________________________________________________________

       [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.... 49 U.S.C. S 41713(b)(1).

                               17
contrary evidences of Congressional intent." Neuberger v.
Commissioner, 311 U.S. 83, 88 (1940); United States v.
Castro, 837 F.2d 441, 443 (11th Cir. 1988) (holding
legislative history and context indicate maxim cannot
apply); National Ass'n of Metal Finishers v. EPA, 719 F.2d
624, 648 n.33 (3d Cir. 1983) (finding that evidence of
legislative intent renders the maxim inapplicable).

As the District Court recognized in its comprehensive
examination of the exclusio unius maxim, "the meaning of
a statute is found in the evil which it is designed to remedy;
and for this the court properly looks at contemporaneous
events, the situation as it existed, and as it was pressed
upon the attention of the legislative body." Church of the
Holy Trinity v. United States, 143 U.S. 457, 463 (1892).
Thus, whether the maxim should be applied to the
standards of care for pilots, flight attendants, and
passengers depends on Congress's intent when it enacted
the ADA -- Congress's intent not only with respect to the
ADA itself, but also regarding the ADA as it affected and
interrelated with the earlier provisions of the FAA.

The ADA was enacted "[t]o ensure that the States would
not undo federal deregulation with regulation of their own
... [by] prohibiting the States from enforcing any law
`relating to rates, routes, or services' of any air carrier."
Morales v. Trans World Airlines, Inc., 504 U.S. 374, 378-79
(1992). Airlines compete against one another by attracting
passengers through the rates, routes, and services that
they offer. Congress did not want the states to hamper this
competition by their own regulation of these areas. Safe
operations, however, are a necessity for all airlines.
Whether or not to conform to safety standards is not an
option for airlines in choosing a mode of competition. For
this reason, safety of an airline's operations would not
appear to fall within the ambit of the ADA and its pro-
competition preemption clause.

Moreover, as the court noted in Moreno Rios v. United
States, 256 F.2d 68 (1st Cir. 1958), "the maxim ... is pretty
weak when applied to acts of Congress enacted at widely
separated times." Id. at 71; see also Cipollone, 505 U.S. at
520 (remarking that " `the views of a subsequent Congress
form a hazardous basis for inferring the intent of an earlier

                                18
one.' "(citation omitted)). The ADA was enacted 20 years
after the FAA. Under the circumstances then of Congress's
intent in adopting both the FAA and the ADA, we do not
find the exclusio unius maxim helpful on the issue of
federal preemption of aviation safety standards.

b. Absence of Federal-State Law Conflict

Another rationale for finding that federal law does not
preempt state and territorial safety standards rests upon
the observation that Congress directed the Administrator to
prescribe "minimum standards" to promote safety. 49
U.S.C. S 44701.13 Because the federal standards are
"minimum," some courts have determined that a common
law duty of safety may be owed beyond the FAA
regulations. See, e.g., In re Air Disaster at Lockerbie,
Scotland, 37 F.3d 804, 815 (2d Cir. 1994); Cleveland, 985
F.2d at 1444-45; Sunbird Air Services, Inc. v. Beech Aircraft
Corp., 789 F. Supp. 360, 362-63 (D. Kan. 1992); Holliday v.
Bell Helicopters Textron, Inc., 747 F. Supp. 1396, 1401 (D.
Haw. 1990). Indeed, as the District Court pointed out in its
preemption analysis, some courts have concluded that the
application of state standards would raise the level of air
safety as a supplement to the federal regulations. See, e.g.,
Cleveland, 985 F.2d at 1445. After finding"nothing
inconsistent with Congress' goal of maximum safety and
common law claims," id. at 1443, the court in Cleveland
compared the state common law duties and the federal
regulatory framework to determine whether there was an
actual conflict. Id. at 1444-45. Finding no conflict between
state and federal law, it found that the state common law
action was not preempted. Id. at 1445.
_________________________________________________________________

13. 49 U.S.C. S 44701(a)(5) provides:

       The Administrator of the Federal Aviation Administration shall
       promote safe flight of civil aircraft in air commerce by
prescribing--

       ...

       (5) regulations and minimum standards for other practices,
       methods, and procedure the Administrator finds necessary for safety
       in air commerce and national security.

(emphasis added).

                               19
We have a problem with applying the type of analysis
employed in Cleveland to determine that there is no federal
preemption of aviation safety. First, as we demonstrate in
Part III.A.1, there is no gap in the federal standards to fill
with a state common law standard. The S 91.13(a)
prohibition of "careless or reckless" operation of an aircraft
occupies the apparent void beyond the specified "minimum"
standards. Therefore, because the Administrator has
provided both general and specific standards, there is no
need to look to state or territorial law to provide standards
beyond those established by the Administrator.

Moreover, as the First Circuit noted in French, the lack of
a conflict between federal standards and state law is
irrelevant. The court in French remarked that the absence
of a conflict was "beside the point." "So long as occupation
of an envisioned field was intended, `any state law falling
within th[e] field is pre-empted.' . . . The federal interest
necessarily predominates, rendering states impotent to act."
869 F.2d at 6 (quoting Silkwood, 464 U.S. at 248); see also
Morales, 504 U.S. at 387 (holding that "[t]he pre-emption
provision [of the ADA] ... displace[s] all state laws that fall
within its sphere, even including state laws that are
consistent with . . . substantive requirements."). In such
instances, "the state statute must yield to the force of
federal law . . . , notwithstanding that it is constructed
upon values familiar to many and cherished by most, and
notwithstanding that it may fit neatly within or alongside
the federal scheme." French, 869 F.2d at 6.

As a consequence, in a federally preempted area, the
question whether state or territorial law conflicts with
federal law is a pointless inquiry. See id. If Congress has
preempted a field -- whether it be expressly or by
implication -- state laws attempting to regulate within that
field "will be invalidated no matter how well they comport
with substantive federal policies." L. TRIBE , AMERICAN
CONSTITUTIONAL LAW S 6-27 at 497 (2d ed. 1988); see also
Silkwood, 464 U.S. at 248.

c. The Savings and Insurance Clauses

The FAA's savings clause provides that: "A remedy under
this part is in addition to any other remedies provided by

                                20
law." 49 U.S.C. S 40120(c). The insurance clause requires
that airlines maintain liability insurance "for bodily injury
to, or death of, an individual ... resulting from the operation
or maintenance of the aircraft." 49 U.S.C. S 41112(a). These
two sections have been interpreted to mean that state
safety standards are not preempted because Congress
provided for compensation of injured persons. See, e.g.,
Hodges, 44 F.3d at 338 & n.7; see also Cleveland, 985 F.2d
at 1442 (collecting cases in which courts relied on the
savings clause to find no preemption of state common law).

These two sections do demonstrate that Congress
intended to allow for compensation of persons who were
injured in aviation mishaps. As we point out in our answer
to the second part of the certified question, however, we do
not find that state and territorial law remedies are
preempted, only the standards of care for the safe operation
of aircraft. For that reason, the inclusion of the savings and
insurance clauses in the FAA is not inconsistent with our
decision. Their inclusion as a part of the FAA is in fact
compatible with our determination that state and territorial
damage remedies are preserved.

d. Reserved State Power

Finally, as the District Court pointed out, some courts
have found that federal law does not preempt state law in
the field of aviation safety because they believe that states
may regulate aviation safety under their traditional police
powers. See, e.g., Cleveland, 985 F.2d at 1443; Kiefer v.
Continental Airlines, Inc., 882 S.W.2d 496, 505 (Tex. App.
1994). However, whether the states may invoke their police
powers depends on whether the field is federally preempted.
See Cleveland, 985 F.2d at 1441 ("Consideration of issues
arising under the Supremacy Clause `start[s] with the
assumption that the historic police powers of the States
[are] not to be superseded by . . . Federal Act unless that
[is] the clear and manifest purpose of Congress'.") (quoting
Cipollone, 505 U.S. at 516 (citation omitted); accord
Hodges, 44 F.3d at 338.

As a result, because we have found that the entirefield
of aviation safety is federally preempted, we need not
consider whether the regulation of aviation safety falls

                               21
within the traditional police powers of the states and
territories.

C. No Federal Preemption of State and
   Territorial Remedies

Even though we have found federal preemption of the
standards of aviation safety, we still conclude that the
traditional state and territorial law remedies continue to
exist for violation of those standards. Federal preemption of
the standards of care can coexist with state and territorial
tort remedies. For instance, in Silkwood, the Supreme
Court held that a state tort remedy can coexist with federal
preemption of the regulation of nuclear safety. 464 U.S. at
256. The Court in Silkwood held that "insofar as damages
for radiation injuries are concerned, preemption should not
be judged on the basis that the Federal Government has so
completely occupied the field of safety that state remedies
are foreclosed, but on whether there is an irreconcilable
conflict between the federal and state standards or whether
the imposition of a state standard in a damages action
would frustrate the objectives of the federal law." Id.

In the present case, we find no "irreconcilable conflict
between federal and state standards." Nor do wefind that
"imposition of a [territorial] standard in a damages action
would frustrate the objectives of the federal law." Quite to
the contrary, it is evident in both the savings and the
insurance clauses of the FAA that Congress found state
damage remedies to be compatible with federal aviation
safety standards. The savings clause provides that "a
remedy under this part is in addition to any other remedies
provided by law." Clearly, Congress did not intend to
prohibit state damage remedies by this language. Moreover,
the insurance clause requires airlines to maintain liability
insurance "for bodily injury to, or death of, an individual
. . . resulting from the operation or maintenance of the
aircraft." 49 U.S.C. S 41112(a). Congress could not have
intended to abolish a damage remedy for injury or death if
it required airlines to maintain insurance coverage to
recompense injured persons. Furthermore, there is no
federal remedy for personal injury or death caused by the
operation or maintenance of aircraft to be found in the FAA
itself. See In re Mexico City Aircrash, 708 F.2d 400, 408

                               22
(9th Cir. 1983). We must conclude, therefore, that the
insurance proceeds are to be available as a remedy under
state or territorial law. See Elsworth v. Beech Aircraft Co.,
691 P.2d 630, 634-35 (1984) ("[T]here is nothing inherently
inconsistent in the proposition that even if the federal
government has entirely occupied the field of regulating an
activity a state may simultaneously grant damages for
violation of such regulations.")

The Court in Silkwood recognized nevertheless that an
inherently regulatory effect is created by a state law damage
remedy. 464 U.S. at 258. Accord Cipollone, 505 U.S. at 521;
Cleveland, 985 F.2d at 1441. The Silkwood Court observed,
however, that Congress had decided to "tolerate whatever
tension there was" between finding the standard of care
preempted and allowing state remedies, and that the
"regulatory consequence [of an award of damages] was
something that Congress was quite willing to accept." 464
U.S. at 256. Similarly, with aviation safety, in light of the
Silkwood decision, we cannot infer from Congress's intent
to federally preempt the standards of care, that Congress
also intended to bar state and territorial tort remedies. See
id. Indeed, as the Seventh Circuit Court of Appeals stated
in Bieneman v. City of Chicago:

       The identity of common law damages and penalties for
       disobedience to substantive rules could lead to a
       conclusion that where a state is forbidden to alter the
       substantive rule, it is forbidden to award damages.
       Silkwood v. Kerr-McGee rejects this equation, however.
       . . . Notwithstanding the argument (indeed the truism)
       that an award of hefty compensatory and punitive
       damages is a method of regulating safety, the Court
       concluded that federal law does not preempt common
       law remedies concerning nuclear safety.

864 F.2d 463, 472 (7th Cir. 1988). See also Elsworth, 691
P.2d at 635 (holding that "in spite of the fact that federal
law may have completely occupied the field of regulation of
aircraft safety . . . remedies that a party may have under
state law" are not abridged by the FAA); cf. TMI III, 67 F.3d
at 1107 (holding that even though federal law controlled the
standard of care in the regulation of nuclear safety, the

                               23
question whether a damages remedy for injured persons
was federally preempted was a separate consideration).

IV. Conclusion

Because we find Congress's intent to regulate interstate
and international air safety to be unambiguous, we hold
that state and territorial standards of care in aviation safety
are federally preempted. Moreover, we find that state and
territorial tort remedies can coexist with federal standards
of care for air safety; thus, plaintiffs, who are injured
during a flight as a result of the violation of federal air
safety standards, may have a remedy in state or territorial
law.

We will remand this case to the District Court to evaluate
whether the evidence on standards of care and the
instructions given to the jury conformed to the federal
aviation safety standards as we have described them, and
for such further proceedings as it may deem necessary.

A True Copy:
Teste:

       Clerk of the United States Court of Appeals
       for the Third Circuit

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