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. e du/thir dc ir c uit_1999/159Filed 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 Khal ed Abdullah, Audrey James, Eardley James, and Velma Ge orge damages for injuries sustained during an American A irlines flight, the District Court of the Virgin Islands, D ivision of Saint Croix, ordered a new trial. The court's actio n was based on its conclusion that it had improperly reli ed upon

territorial common law to establish the standards o f care that were used by the jury to determine that neglig ence 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

2the 1958 Federal Aviation Act, Pub. L. No. 85-726, 72 Stat.

731, (codified as amended at 49 U.S.C. SS 40101-491 05) (FAA), implicitly preempts territorial standards fo r aviation safety,1 and that the jury should not have been ins tructed on a territorial law standard of care. Abdullah, 96 9 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 evidenc e was prejudicial, the court ordered a new trial. Id . at 340. At plaintiffs' request, the District Court then certif ied the following issue for appeal:

Does federal law preempt the standards for a ir safety, but preserve State and Territorial damage re medies?

We will answer both parts of this certified questio n with a "yes." As to the first part of the question, cont rary to courts that have found that federal law does not pr eempt state and territorial air safety standards, or that federal law only preempts discrete aspects thereof, we find imp lied federal preemption of the entire field of aviation safety. As to the second part, we conclude that, despite feder al preemption of the standards of care, state and terr itorial damage remedies still exist for violation of those standards.

Our finding on preemption is based on our determina tion that the FAA and relevant federal regulations estab lish complete and thorough safety standards for intersta te and international air transportation and that these sta ndards are not subject to supplementation by, or variation among,

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1. Subsequent to the trial in the case at bar but p rior to the resolution of American's post-trial motions, American proceede d with related litigation in the Southern District of New York. In that case, the

District Court rejected American's contention that federal l aw 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 questi on which it then certified for interlocutory appeal to the Second Ci rcuit. The Second

Circuit decided not to address the issue at that ti me. 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 ca se pending in the Virgin

Islands.

3jurisdictions. Thus, we agree with the District Cou rt that it

was error to rely upon territorial safety standards in determining American Airlines' liability in this ca se.

In coming to our conclusion on preemption, we do no t, however, agree with the narrow nature of the federa l standard set out by the District Court. We conclude instead that there is an overarching general standard of ca re under the FAA and its regulations. This standard arises i n particular from 14 C.F.R. S 91.13(a): "No person ma y operate an aircraft in a careless or reckless manne r so as to endanger the life or property of another." Thus, we do not agree with the District Court's determination t hat

evidence on "reasonable standard of care" should necessarily have been excluded -- as long as a "rea sonable standard of care" is compatible with an avoidance o f carelessness or recklessness in the operation of th e aircraft.2

We will remand this case to the District Court to r eview both the testimony and the jury instructions on sta ndards of care in order to determine if they are consisten t with the standards we set out here. If they are, the jury ve rdict 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, Pue rto Rico, on August 28, 1991. En route, the aircraft

encountered severe turbulence which caused serious injuries to a number of passengers, including the p laintiffs. The First Officer had noticed a weather system deve loping in the flight path and had illuminated the seatbelt sign. He had also gone to the back of the aircraft to warn t he flight attendants that the ride could get choppy in ten mi nutes. None of the crew, however, alerted the passengers o f the expected turbulence. Nor did the pilot change cours e in

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

4order to avoid the storm. Some of the injured passe ngers

were wearing their seatbelts; some were not.

Plaintiffs filed two separate lawsuits against defe ndant American Airlines, Inc., alleging negligence on the part of the pilot and flight crew in failing to take reason able precautions to avoid the turbulent conditions known to them and in failing to give warnings reasonably cal culated to permit plaintiffs to take steps to protect thems elves.3

A jury trial commenced on August 7, 1995, in the Di strict Court of the Virgin Islands, Division of Saint Croi x. The plaintiffs' cases were consolidated for trial. On A ugust 25, 1995, the jury found American liable, found plainti ffs to be without any contributory fault, and awarded monetar y 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 a nd costs. Among the grounds asserted was that the District Co urt had improperly used territorial common law to estab lish the standards of care for the pilots, flight attend ants, and passengers. American argued that the FAA implicitly preempts the standards for airline safety.

The District Court issued an Opinion on June 5, 199 7, holding that the FAA impliedly preempts state and territorial regulation of aviation safety and stand ards 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. Su pp. 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 standard s, warranted a new trial.

Upon motion of the plaintiffs, the District Court c ertified this issue for interlocutory review. We granted int erlocutory

review.

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

5II. Jurisdiction and Standard of Review

Subject matter jurisdiction in the District Court r ested 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 gr ound for a difference of opinion" on an issue and "an immedi ate appeal . . . may materially advance the ultimate te rmination of the litigation."

The appeal involves a question of law, so that the standard of review is plenary. Epwright v. Environm ental Resources Management, Inc. Health & Welfare Plan, 8 1 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 mo tion. "As the text of S 1292(b) indicates, appellate jurisdic tion applies to the order certified to the court of appeals, and is not tied to the particular question formulated by the distri ct court." Yamaha Motor Corp. v. Calhoun, 516 U.S. 199, 205 (1 996). "[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 identi fied 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 Constitut ion, 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. "Cons ideration of issues arising under the Supremacy Clause `start [s] with the assumption that the historic police powers of t he States [are] not to be superseded by . . . Federal Act unl ess that [is] the clear and manifest purpose of Congress'." Cipollone v. Liggett Group, Inc., 505 U.S. 504, 516 (1992) (q uoting Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230 (1947)).

6"Accordingly, `[t]he purpose of Congress is the ult imate

touchstone' of pre-emption analysis." Id. (citation omitted). The Supreme Court has cautioned that "despite the v ariety of these opportunities for federal preeminence, we have never assumed lightly that Congress has derogated s tate regulation, but instead have addressed claims of pr eemption with the starting presumption that Congress does not intend to supplant state law." New York State C onf. 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 i n the statute's language or implicitly contained i n its structure and purpose." Jones v. Rath Packin g Co., 430 U.S. 519, 525 (1977). In the absence of an e xpress congressional command, state law is pre-empt ed if that law actually conflicts with federal law, see Pacific Gas & Elec. Co. v. State Energy Resources Conser vation and Dev. Comm'n, 461 U.S. 190, 204 (1983), or if federal law so thoroughly occupies a legislative fie ld" `as to make reasonable the inference that Congress left no room for the States to supplement it'." Fide lity Fed. Sav. & Loan Assn. v. De la Cuesta, 458 U.S. 141, 153 (1982) (quoting Rice v. Santa Fe Elevator Co rp., 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 S upreme Court has characterized field preemption in this wa y:

Congress implicitly may indicate an intent t o occupy a given field to the exclusion of state law. S uch a purpose properly may be inferred where the pervasiveness of the federal regulation prec ludes supplementation by the States, where the fed eral interest in the field is sufficiently domina nt, or where "the object sought to be obtained by the fed eral law and the character of obligations imposed by it . . . reveal the same purpose."

7Schneidewind v. ANR Pipeline Co., 485 U.S. 293, 300 (1988)

(quoting Rice, 331 U.S. at 230).4 Thus, implied fe deral 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 Congre ssional objectives. See Silkwood v. Kerr-McGee Corp., 464 U .S. 238, 248 (1984).

Our finding of implied field preemption here is bas ed on

our conclusion that the FAA and relevant federal regulations establish complete and thorough safety

standards for interstate and international air tran sportation that are not subject to supplementation by, or vari ation 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); W orld Airways, Inc. v. International Bhd. of Teamsters, 5 78 F.2d 800 (9th Cir. 1978); Kohr v. Allegheny Airlines, In c., 504 F.2d 400 (7th Cir. 1974), we hold that federal law establishes the applicable standards of care in the field of air safety, generally, thus preempting the entirefi eld from state and territorial regulation.

In regard, however, to the second part of the certi fied question, although the term "field preemption" sugg ests 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, 1 106-07 (3d Cir. 1995) (TMI III), we held that federal regu lation of nuclear safety preempted state tort law on the stan dard of care. Still, even though federal law controlled the standard of care, we held that the question whether causatio n 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 Congre ss, in enacting the FAA and relevant regulations, intended generally to preempt state and territorial regulati on of aviation safety. Nevertheless, we find that plainti ffs may

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4. State common law rules may be preempted in the s ame ways as state statutes or regulations. Public Health Trust v. Lak e Aircraft, Inc., 992 F.2d 291, 294 (11th Cir. 1993) (citing Cipollone, 5 05 U.S. at 523).

8recover damages under state and territorial remedia l

schemes.

In coming to our answers to the certified question, we depart from the precedent established by a number o f cases which hold that federal law does not preempt any as pect 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); T rinidad 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 thes e courts presumed, without deciding through in-depth analysi s, that the FAA did not preempt state or territorial air sa fety standards, or because these courts followed the pre emption language of the Airline Deregulation Act, 49 U.S.C. S 41713(b)(1) (formerly S 1305(a)(1)) (ADA), an eco nomic deregulation statute that we find inapposite to res olving preemption questions relating to the safety of air operations. Cf. Taj Mahal Travel, Inc. v. Delta Air lines, Inc., 164 F.3d 186, 190-95 (3d Cir. 1998) (finding that defamation action was not preempted by the ADA beca use it did not involve a regulatory or public utility f unction). We conclude that Congress's intent to preempt state an d territorial regulations of air safety is not affect ed 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 exami nation 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." Un ited 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 w ho travel on board aircraft." In re Mexico City Aircrash of O ctober 31, 1979, 708 F.2d 400, 406 (9th Cir. 1983); accord Rau ch v. United Instruments, Inc., 548 F.2d 452, 457 (3d Cir . 1976).

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

9v. Lockheed Air Terminal, Inc., 411 U.S. 624, 639 ( 1973)

(noting that "a uniform and exclusive system of fed eral regulation" is required "if the congressional objec tives underlying the [FAA] are to be fulfilled"); Christe nsen, 419 F.2d at 1404 (remarking that "the whole tenor of th e [FAA] and its principal purpose is to create and enforce one unified system of flight rules"). By enacting the F AA, Congress intended to rest sole responsibility for s upervising the aviation industry with the federal government:

[A]viation is unique among transportation in dustries in its relation to the federal government--it i s the only one whose operations are conducted almost wh olly within federal jurisdiction, and are subject to little or no regulation by States or local authorities . Thus, the federal government bears virtually compl ete responsibility for the promotion and supervi sion 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 an d promulgation of civil aeronautics generally, includ ing promulgation and enforcement of safety regulations. " H.R.Rep. No. 2360, reprinted in 1958 U.S.C.C.A.N. 3 741, 3741. In addition, in a letter included as part of the House Report, the Airways Modernization Board Chairman wr ote: "It is essential that one agency of government, and one agency alone, be responsible for issuing safety reg ulations if we are to have timely and effective guidelines f or safety in

aviation." Id. at 3761.

Thus, legislative history reveals that Congress int ended the Administrator, on behalf of the Federal Aviatio n Administration, to exercise sole discretion in regu lating air

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5. Originally called the Federal Aviation Agency, i t was later renamed the Federal Aviation Administration and made part of th e Department of Transportation. Department of Transportation Act, P ub.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.).

10safety. And this is exactly what Congress accomplis hed

through the FAA. Congress enacted Chapter 447, Safe ty Regulation, and directed the Administrator to "carr y 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 Administratio n "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, whic h promotes flight safety by regulating pilot certific ation,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 histo ry as evincing Congress's intent to exercise supremacy ov er the field of aviation safety. For instance, just after the passage of the FAA, the Second Circuit Court of Appeals rem arked: "The Federal Aviation Act was passed by Congress fo r the purpose of centralizing in a single authority--inde ed, in one administrator--the power to frame rules for the saf e and

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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 civ il aircraft of United

States registry unless he has in his personal posse ssion 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), v erify the aircraft's worthiness, 14 C.F.R. S 91.7 (1996), and ensure tha t 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). Fur thermore 14 C.F.R. S 91.7 mandates that "[t]he pilot in command shall discontinue the flight when unairworthy mechanical, electrical, or structu ral conditions occur."

9. 14 C.F.R. S 91.101 states: "This subpart prescri bes flight rules governing the operation of aircraft within the Unit ed States and within

12 nautical miles from the coast of the United Stat es."

11efficient use of the nation's airspace." Air Line P ilots Ass'n,

Int'l v. Quesada, 276 F.2d 892, 894 (2d Cir. 1960).

Then, in City of Burbank, the Supreme Court held th at Congress's consolidation of control of aviation in one agency indicated its intent to federally preempt av iation 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 beca use of its interrelationship with airspace management. Id. at 627- 28. Although he dissented in City of Burbank, Justi ce 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 o ver aviation that had previously been diffused w ithin that branch. The paramount substantive concerns o f Congress were to regulate federally all aspe cts of air safety, . . . and, once aircraft were in "fl ight," air-space
management . . ..

Id. (emphasis added).10

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10. The decision in City of Burbank, regarding fede ral preemption, affirmed sentiments that, prior to the passage of t he FAA, the Court had expressed regarding the nature of aviation. For ins tance, in Northwest Airlines, Inc v. Minnesota, 322 U.S. 292, 303 (1944 ), Justice Jackson, in a concurrence, expressed the view that federal avia tion 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 m ove only by federal permission, subject to federal inspection, i n the hand of federally certified personnel and under an intricate s ystem of federal commands. The moment a ship taxis onto a run way it is caught up in an elaborate and detailed system of contr ols. It takes off only by instruction from the control tower, it trave ls on prescribed beams,

it may be diverted from its intended landing, a nd it obeys signals and orders. Its privileges, rights and protectio n, so far as transit is concerned, it owes to the Federal Government alone and not to any state governments.

12In Kohr v. Allegheny Airlines, Inc., 504 F.2d 400 ( 7th Cir.

1974), a mid-air collision case, the Seventh Circui t found the rights and liabilities of the parties to be fed erally 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 ce ntralize in

the Administrator of the Federal Aviation Administr ation the power to promulgate rules for the safe and effi cient use of the country's airspace." Id. at 404. The court f ound 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 st ate air safety standards in British Airways Bd. v. Port Aut hority of New York, 558 F.2d 75 (2d Cir. 1977), and held that , by enacting the 1968 noise control amendments to the F AA, Congress "intended to strengthen the FAA's regulato ry 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 li kelihood of multiple, inconsistent rules would be a dagger poin ted at the heart of commerce--and the rule applied might c ome literally to depend on which way the wind was blowi ng.").

The understanding of the courts in these early case s that the FAA's broad scope implied federal preemption of aviation safety standards, has been affirmed over t ime. In recent decades, courts of appeals have found implie d 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 t o air safety, to be federally preempted. Id. at 6. The co urt held

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

13that "such an intent is implicit in the pervasivene ss of

relevant federal regulation, the dominance of the f ederal 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 af fords no room for the imposition of state law criteri a vis-a-vis pilot suitability. We therefore conclude, wi thout serious question, that preemption is implied by the comprehensive legal scheme which imposes on the [Administrator] the duty of qualifying pilot s 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 an y state or territorial standards of care relating to aviation safety are federally preempted. Our analysis is sustained by r eference to the broad scope of the FAA, described above. It also is supported by decisions in which courts found federa l preemption of discrete, safety-related matters, suc h as airspace management, flight operations, and aviatio n noise, because of the promulgation of specific federal reg ulations over those aspects of air safety. See, e.g., City o f Burbank, 411 U.S. at 633; San Diego Unified Port Dist. v. Gi anturco, 651 F.2d 1306, 1316 (9th Cir. 1981); Price v. Chart er Township, 909 F. Supp. 498 (E.D. Mich. 1995); see a lso id. at 1351 n.22 (citing numerous cases in which the co urts held flight control regulation to reduce noise fede rally 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 avia tion safety, navigable airspace and noise control are pr eempted).

It follows from the evident intent of Congress that there be federal supervision of air safety and from the d ecisions in which courts have found federal preemption of di screte, safety-related matters, that federal law preempts t he

14general 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 lic ensing, it does not preempt regulations relating to the exerci se of the specific skill for which licensing is necessary--pi lots' operation of aircraft.

Moreover, our move from specific to general regulat ion is not without support in FAA regulations themselves. For example, 14 C.F.R. S 91.13(a), which governs "Carel ess or Reckless Operation," supplies a comprehensive stand ard 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 an other." In a case then where there is no specific provision or regulation governing air safety, S 91.13(a) provide s a general description of the standard required for the safe o peration

of aircraft.

Thus, in determining the standards of care in an av iation negligence action, a court must refer not only to s pecific regulations but also to the overall concept that ai rcraft may not be operated in a careless or reckless manner. T he applicable standard of care is not limited to a par ticular regulation of a specific area; it expands to encomp ass the issue of whether the overall operation or conduct i n question was careless or reckless. Moreover, when a jury is determining what constitutes careless or reckless o peration 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 se at belts

and on the illumination of the "fasten seat belt" s ign11 set the standard for determining both whether American

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

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

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

15operated the aircraft carelessly or recklessly and whether

the passengers, who had not fastened their seatbelt s, were contributorily negligent. In addition, expert testi mony may help the jury to understand whether the way in whic h warnings of turbulence and/or illumination of seatb elt signs were conveyed to the passengers constituted c areless or reckless operation.

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

B. Divergent Authority

Despite the legislative history and interpreting au thority 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 the se courts have relied in reaching this conclusion, are unpersuasive. As explained below, either the courts have presumed, without any in-depth analysis, that the F AA does not preempt state or territorial air safety st andards, or they have followed precedent involving the ADA, an economic deregulation statute which is inapposite t o 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 ma xim which means "to express one is to exclude the other ." As with all easy answers, it should be taken with a gr ain of salt -- or even better, with a grain of common sens e.

The maxim has been employed by some courts to justi fy a decision that air safety standards are not federa lly preempted. The main rationale for such a finding re sts on Section 105(a)(1) of the ADA, which provides that t he regulation of "rates, routes, and services" is expr essly preempted.12 Based on the language of this section, some

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

16courts have observed that state tort law claims for personal

injuries connected to airline operations are not pr eempted. 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"no where in the legislative history or in the evolution of t he [FAA] is there any suggestion that the preemption provision of the [ADA] was intended to preclude common law negligenc e actions" and collecting cases); see also American A irlines, Inc. v. Wolens, 513 U.S. 219, 231, n.7 (1995) (noti ng that

the United States as Amicus Curiae had conceded tha t"[i]t is ... unlikely that [the ADA] preempts safety-rela ted personal injury claims relating to airplane operati ons"). Such a result may not, of course, be inconsistent w ith our determination that even with federal preemption of standards of care, state tort remedies are preserve d. A number of courts have, however, continued to use th e state law standard of care, along with state remedies. Th ey have

concluded that the standards of care related to avi ation safety by implication must not be preempted because expressio unius est exclusio alterius. See, e.g., P ublic 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 pr eempted is inappropriate. This maxim "stands on the faulty premise that all possible alternatives or supplemental prov isions were necessarily considered and rejected by the leg islative

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

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[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 othe r provision having the force and effect of law relating to rates, r outes, or services of any air carrier.... 49 U.S.C. S 41713(b)(1).

17contrary evidences of Congressional intent." Neuber ger 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 cann ot apply); National Ass'n of Metal Finishers v. EPA, 7 19 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 comprehensi ve examination of the exclusio unius maxim, "the meani ng of a statute is found in the evil which it is designed to remedy; and for this the court properly looks at contempora neous 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 (1 892). Thus, whether the maxim should be applied to the standards of care for pilots, flight attendants, an d passengers depends on Congress's intent when it ena cted the ADA -- Congress's intent not only with respect to the ADA itself, but also regarding the ADA as it affect ed and interrelated with the earlier provisions of the FAA

.

The ADA was enacted "[t]o ensure that the States wo uld not undo federal deregulation with regulation of th eir 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 att racting passengers through the rates, routes, and services that they offer. Congress did not want the states to ham per this competition by their own regulation of these areas. Safe operations, however, are a necessity for all airlin es. Whether or not to conform to safety standards is no t an option for airlines in choosing a mode of competiti on. For this reason, safety of an airline's operations woul d not appear to fall within the ambit of the ADA and its procompetition preemption clause.

Moreover, as the court noted in Moreno Rios v. Unit ed States, 256 F.2d 68 (1st Cir. 1958), "the maxim ... is pretty weak when applied to acts of Congress enacted at wi dely separated times." Id. at 71; see also Cipollone, 50 5 U.S. at 520 (remarking that " `the views of a subsequent Co ngress form a hazardous basis for inferring the intent of an earlier

18one.' "(citation omitted)). The ADA was enacted 20 years

after the FAA. Under the circumstances then of Cong ress'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 rest s upon the observation that Congress directed the Administ rator 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 commo n law duty of safety may be owed beyond the FAA regulations. See, e.g., In re Air Disaster at Locke rbie, Scotland, 37 F.3d 804, 815 (2d Cir. 1994); Clevelan d, 985 F.2d at 1444-45; Sunbird Air Services, Inc. v. Beec h Aircraft Corp., 789 F. Supp. 360, 362-63 (D. Kan. 1992); Hol liday v. Bell Helicopters Textron, Inc., 747 F. Supp. 1396, 1401 (D. Haw. 1990). Indeed, as the District Court pointed o ut in its preemption analysis, some courts have concluded tha t the application of state standards would raise the leve l 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 Cleve land compared the state common law duties and the federa l regulatory framework to determine whether there was an actual conflict. Id. at 1444-45. Finding no conflic t between state and federal law, it found that the state comm on law action was not preempted. Id. at 1445.

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

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

...

(5) regulations and minimum standards for ot her practices, methods, and procedure the Administrator fin ds necessary for safety in air commerce and national security.

(emphasis added).

19We have a problem with applying the type of analysi s

employed in Cleveland to determine that there is no federal preemption of aviation safety. First, as we demonst rate in Part III.A.1, there is no gap in the federal standa rds 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 "mi nimum" 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 a bsence of a conflict was "beside the point." "So long as o ccupation of an envisioned field was intended, `any state law falling within th[e] field is pre-empted.' . . . The federa l 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-e mption provision [of the ADA] ... displace[s] all state la ws that fall within its sphere, even including state laws that a re consistent with . . . substantive requirements."). In such instances, "the state statute must yield to the for ce of federal law . . . , notwithstanding that it is cons tructed upon values familiar to many and cherished by most, and notwithstanding that it may fit neatly within or al ongside the federal scheme." French, 869 F.2d at 6.

As a consequence, in a federally preempted area, th e question whether state or territorial law conflicts with federal law is a pointless inquiry. See id. If Cong ress has preempted a field -- whether it be expressly or by implication -- state laws attempting to regulate wi thin that field "will be invalidated no matter how well they comport with substantive federal policies." L. TRIBE , AMER ICAN 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 u nder this part is in addition to any other remedies prov ided by

20law." 49 U.S.C. S 40120(c). The insurance clause re quires

that airlines maintain liability insurance "for bod ily injury to, or death of, an individual ... resulting from t he operation or maintenance of the aircraft." 49 U.S.C. S 41112( a). These two sections have been interpreted to mean that sta te 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, 9 85 F.2d at 1442 (collecting cases in which courts relied on the savings clause to find no preemption of state commo n law).

These two sections do demonstrate that Congress intended to allow for compensation of persons who w ere injured in aviation mishaps. As we point out in our answer to the second part of the certified question, howev er, we do

not find that state and territorial law remedies ar e 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 wi th our decision. Their inclusion as a part of the FAA is i n fact compatible with our determination that state and te rritorial damage remedies are preserved.

d. Reserved State Power

Finally, as the District Court pointed out, some co urts have found that federal law does not preempt state law in the field of aviation safety because they believe t hat states may regulate aviation safety under their traditiona l police powers. See, e.g., Cleveland, 985 F.2d at 1443; Kie fer v. Continental Airlines, Inc., 882 S.W.2d 496, 505 (Te x. App. 1994). However, whether the states may invoke their police powers depends on whether the field is federally pr eempted. See Cleveland, 985 F.2d at 1441 ("Consideration of issues arising under the Supremacy Clause `start[s] with t he assumption that the historic police powers of the S tates [are] not to be superseded by . . . Federal Act unl ess that [is] the clear and manifest purpose of Congress'.") (quoting Cipollone, 505 U.S. at 516 (citation omitted); acco rd Hodges, 44 F.3d at 338.

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

21within 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 tha t the

traditional state and territorial law remedies cont inue to exist for violation of those standards. Federal pre emption of

the standards of care can coexist with state and te rritorial tort remedies. For instance, in Silkwood, the Supre me Court held that a state tort remedy can coexist wit h federal preemption of the regulation of nuclear safety. 464 U.S. at

256. The Court in Silkwood held that "insofar as da mages for radiation injuries are concerned, preemption sh ould 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 irreconc ilable

conflict between the federal and state standards or whether the imposition of a state standard in a damages act ion would frustrate the objectives of the federal law." Id.

In the present case, we find no "irreconcilable con flict

between federal and state standards." Nor do wefind that "imposition of a [territorial] standard in a damage s 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 st ate damage remedies to be compatible with federal aviat ion 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. Mo reover, the insurance clause requires airlines to maintain liability insurance "for bodily injury to, or death of, an in dividual . . . resulting from the operation or maintenance o f the aircraft." 49 U.S.C. S 41112(a). Congress could not have intended to abolish a damage remedy for injury or d eath if it required airlines to maintain insurance coverage to recompense injured persons. Furthermore, there is n o 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 40 0, 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 Air craft Co., 691 P.2d 630, 634-35 (1984) ("[T]here is nothing in herently inconsistent in the proposition that even if the fe deral government has entirely occupied the field of regul ating an activity a state may simultaneously grant damages f or 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 obs erved, however, that Congress had decided to "tolerate wha tever tension there was" between finding the standard of care preempted and allowing state remedies, and that the "regulatory consequence [of an award of damages] wa s something that Congress was quite willing to accept ." 464 U.S. at 256. Similarly, with aviation safety, in li ght of the Silkwood decision, we cannot infer from Congress's intent to federally preempt the standards of care, that Co ngress also intended to bar state and territorial tort rem edies. See id. Indeed, as the Seventh Circuit Court of Appeals stated in Bieneman v. City of Chicago:

The identity of common law damages and penal ties for

disobedience to substantive rules could lead to a

conclusion that where a state is forbidden t o alter the substantive rule, it is forbidden to award d amages. Silkwood v. Kerr-McGee rejects this equation , however. . . . Notwithstanding the argument (indeed t he truism) that an award of hefty compensatory and puni tive damages is a method of regulating safety, th e Court concluded that federal law does not preempt common law remedies concerning nuclear safety.

864 F.2d 463, 472 (7th Cir. 1988). See also Elswort h, 691 P.2d at 635 (holding that "in spite of the fact tha t federal law may have completely occupied the field of regul ation of aircraft safety . . . remedies that a party may hav e under state law" are not abridged by the FAA); cf. TMI II I, 67 F.3d at 1107 (holding that even though federal law contr olled the standard of care in the regulation of nuclear safet y, the

23question whether a damages remedy for injured perso ns

was federally preempted was a separate consideratio n).

IV. Conclusion

Because we find Congress's intent to regulate inter state and international air safety to be unambiguous, we hold

that state and territorial standards of care in avi ation safety are federally preempted. Moreover, we find that sta te and

territorial tort remedies can coexist with federal standards of care for air safety; thus, plaintiffs, who are i njured during a flight as a result of the violation of fed eral air safety standards, may have a remedy in state or ter ritorial

law.

We will remand this case to the District Court to e valuate

whether the evidence on standards of care and the instructions given to the jury conformed to the fed eral aviation safety standards as we have described them , and for such further proceedings as it may deem necessa ry.

A True Copy:

Teste:

Clerk of the United States Court of Appeals

for the Third Circuit

24