1999 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

6-23-1999

Abdullah v. Amer Airlines Inc

Precedential or Non-Precedential:

Docket 98-7055

Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_1999

This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova

University School of Law Digital Repository. It has been accepted for inclusion in 1999 Decisions by an authorized administrator of Villanova

University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.

Recommended Citation

"Abdullah v. Amer Airlines Inc" (1999). 1999 Decisions. Paper 159.

http://digitalcommons.law.villanova.edu/thirdcircuit_1999/159
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 preemption 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 preempt 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 procompetition 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 

 24