44 F.3d 334
63 USLW 2529
Frances S. HODGES, Plaintiff-Appellant,v.DELTA AIRLINES, INC., Defendant-Appellee.
No. 91-6037.
United States Court of Appeals,Fifth Circuit.
Feb. 15, 1995.

David W. Showalter, Bellaire, TX, Stuart J. Starry, Fleming, Hovenhamp & Grayson, Houston, TX, for appellant.
Jeffrey Robert White, Washington, DC, David R. Weiner, Dallas, TX, for amici curiae in favor of appellant.
Jennifer Bruch Hogan, William J. Boyce, Fulbright & Jaworski, Houston, TX, for appellee.
David T. Moran, Jackson & Walker, Dallas, TX, amicus curiae in favor of appellee.
Appeal from the United States District Court for the Southern District of Texas.
Before POLITZ, Chief Judge, GARWOOD, JOLLY, HIGGINBOTHAM, DAVIS, JONES, SMITH, DUHE, WIENER, BARKSDALE, EMILIO M. GARZA, DeMOSS, BENAVIDES, STEWART, and PARKER, Circuit Judges.
EDITH H. JONES, Circuit Judge:


1
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 Sec. 1305(a)(1) of the Airline Deregulation Act of 1978 (ADA), 49 U.S.C.App. Secs. 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that it is not and therefore overrule Baugh v. Trans World Airlines, Inc., 915 F.2d 693 (5th Cir.1990), an originally unpublished opinion that, as circuit precedent, compelled the opposite result in the panel opinion herein.

DISCUSSION

2
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).


3
Section 1305(a)(1) provides in pertinent part:


4
[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.


5
49 U.S.C.App. Sec. 1305(a)(1).


6
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. Sec. 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 Sec. 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).


7
The question in this case is the breadth of that express 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.


8
The Supreme Court has twice broached the subject of Sec. 1305(a)(1) preemption in a way that informs but does not squarely resolve this case.  In the first decision the question was whether Sec. 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 Ed.1979)).  Consequently, "[s]tate enforcement actions having a connection with or reference to airline 'rates, routes or services' are preempted" under Sec. 1305(a)(1).  Id.


9
As a necessary consequence of its broad interpretation, the Court rejected the argument that Sec. 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.


10
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.


11
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:


12
"Services" generally represent a bargained-for or anticipated provision of labor from one party to another.  If the element 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.


13
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. ----, ----, 115 S.Ct. 817, 823, 130 L.Ed.2d 715 (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 Sec. 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.


14
Under the regulatory framework established by the FAA, the term "service" or "services" had an established definition, consistent with dictionary usage.3  A vestige of that definition remains in what is left of the federal airline regulatory statutes:


15
"All-cargo air service" means the carriage by aircraft in interstate or overseas air transportation of only property or mail, or both.


16
49 U.S.C.App. Sec. 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


17
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.  The Board concluded that:


18
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


19
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. Sec. 1551(b), continues to identify "service" or "services" in its regulations to incorporate the accoutrements of the passenger- or shipper- and carrier contract.6


20
A facile analogy to Morales and the ERISA pre-emption cases could suggest that "services" includes all aspects of the air 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".


21
That Congress did not, however, intend Sec. 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. Sec. 1371(q) (1994);  see also, 14 C.F.R. Sec. 205.5(a) (1992) (insurance regs.).7  The importance of Sec. 1371(q) cannot be understated, for it can only be understood to qualify the scope of "services" removed from state regulation by Sec. 1305(a)(1).  A complete preemption of state law in this area would have rendered any requirement of insurance coverage nugatory.


22
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. Sec. 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.


23
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, 115 S.Ct. at 825 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 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


24
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 Sec. 1371(q).  The "services" that the state may not regulate under Sec. 1305(a)(1) are distinct from the "operation and maintenance of aircraft", and all claims related to "services" are preempted.11


25
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 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


26
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 Sec. 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 Sec. 1371(q), Congress explicitly preserved airlines' duty to respond to tort actions, inferentially state law actions, for physical injury or property damage.


27
Finally, unlike the NAAG Guidelines in Morales, enforcement of tort remedies for personal physical injury ordinarily has no "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.


28
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 Sec. 1305(a)(1).  O'Carroll did not discuss the scope of Sec. 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 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. Sec. 1511(a).


29
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 Sec. 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

30
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 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 Sec. 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).


31
The judgment of the district court is REVERSED, and the case is REMANDED for further proceedings.

E. GRADY JOLLY, specially concurring:

32
I concur in the judgment in this case and its companion, Smith v. America West Airlines, 44 F.3d 344 (5th Cir.).  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 majority and the dissent disagree only on the application of this principle reveals that it promises uncertainty and inconsistent results.


33
I would have preferred that we give effect to the plain language of the ADA preemption provision.  Plainly, it preempts only claims "related 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."   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, --- U.S. ----, ----, 115 S.Ct. 817, 826, 130 L.Ed.2d 715 (1995).   Instead, these suits involve efforts by private individuals to obtain relief afforded by the common law tort rules of the state.2


34
According to well-settled principles of statutory construction, we must not read the ADA preemption provision "so as to render another [provision] superfluous."  Forsyth v. Barr, 19 F.3d 1527, 1543 (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


35
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 as a mistake 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 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


36
PATRICK E. HIGGINBOTHAM, Circuit Judge, with whom EMILIO M. GARZA, Circuit Judge, joins, dissenting:


37
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.


38
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. Sec. 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 Sec. 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).


39
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, 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. Sec. 1374(q)(1) (emphasis added).  We cannot read Sec. 1305(a)(1)'s use of the term services to include operation or maintenance of an aircraft and give meaning to Sec. 1371(q)(1).


40
The first inquiry is whether the claim, with regulatory effect, relates to "rates, routes or services."   49 U.S.C.App. Sec. 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. Sec. 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.


41
Reflecting upon the practical reach of a tort claim sheds light on 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 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:


42
(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.


43
Id. at 463.   The placement of baggage in an overhead compartment plainly relates to airline services.  State enforcement of the claim plainly regulates.


44
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. Sec. 1301(31).  The statute does not define "maintenance of 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.



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
 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 Sec. 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 Sec. 1305(a)(1)


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. Sec. 201.1 (domestic all-cargo air service );  Sec. 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);  Sec. 204.3(t) (a description of the service to be operated if an application is granted);  Sec. 207.1 (defining special "services");  Sec. 207.13(b) (terms of service for charter trips);  Sec. 207.71(a) (terms of service for charter trips include those for ground accommodations and services );  Sec. 217.4(b) (listing classes of service including scheduled passengers/cargo;  scheduled all-cargo, ... non-scheduled services ...) (emphasis added)


7
 Further, Sec. 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. Sec. 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
 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))


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)


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)


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 Sec. 1374(a).  Diefenthal v. CAB, supra


1
 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.  It is now codified at 49 U.S.C. Sec. 41713B and provides:
A state, political subdivision of a state, or political authority of at least 2 states may not enact or enforce a law, regulation, or other provision having the force and effect of law related to a price, route, or service of an air carrier ...
The former provision, 49 U.S.C.App. Sec. 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 ...


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 Sec. 41713 connotes "official government-imposed policies ... that operate irrespective of any private agreement."  Id., --- U.S. at ----, 115 S.Ct. at 824.   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


3
 49 U.S.C.App. Sec. 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. Sec. 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. Sec. 1144.  The preemption 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, 499 U.S. 117, 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 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 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. Sec. 250 (1994)


6
 The House Report accompanying the enactment of 49 U.S.C.App. Sec. 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, Sec. 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 Sec. 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 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. Sec. 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 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 Sec. 1305," id. at 13, is properly regarded as obiter dictum.


