* Chief District Judge of the Eastern District of Texas, sitting by designation. United States Court of Appeals,

Fifth Circuit.

No. 91-6037.

Frances S. HODGES, Plaintiff-Appellant,

v.

DELTA AIRLINES, INC., Defendant-Appellee.

Oct. 14, 1993.

Appeal from the United States District Court for the Southern District of Texas.

Before DAVIS and JONES, Circuit Judges, and PARKER * , District Judge.

EDITH H. JONES, Circuit Judge:

The question posed in this case is whether a tort claim for physical injury based on an unsafe

condition in an airplane is preempted by § 1305 of the Airline Deregulation Act of 1978. Bound by

a previous unpublished opinion of this court, we must hold that it is. B augh v. Trans World Airlines,

Inc., 915 F.2d 693 (1990). The panel believes this is the wrong result and urges en banc review.

During a flight from the Caribbean to Miami, a fellow passenger opened the overhead

compartment directly above Frances Hodges, dislodging and spilling a case containing several bottles

of rum. The box fell on Hodges and lacerated her left arm and wrist. Befo re Ho dges's profuse

bleeding was brought under control, a significant amount of her blood mingled in the aisle with the

puddle of rum and broken glass.

Hodges filed suit in federal court, complaining that Delta Airlines's negligenc e caused her

injury and pain and high medical expenses. Delta argued successfully before the district court that

Hodges's claims are preempted by section 1305 of the Airline Deregulation Act of 1978 (ADA), 49

U.S.C.App. §§ 1301 et seq., and that the ADA contains no implied private right of action. We review

the district court's consequent granting of a summary judgment de novo. If the panel were to decide

the issue in the first instance, we would decide that there was no ADA preemption of this bodily

injury tort case. As stated before, we may not do so.1 In Schw amb v. Delta Airlines, Inc., 516 So.2d 452 (La.Ct.App.1987), a case whose facts are

generally indistinguishable from the present case, Delta never even suggested that the plaintiff's

tort claims were preempted by section 1305.

2 Hillsborough County, Florida v. Automated Medical Laboratories, Inc., 471 U.S. 707, 713,

105 S.Ct. 2371, 2375, 85 L.Ed.2d (1985); Shaw v. Delta Airlines, Inc., 463 U.S. 85, 95, 103

S.Ct. 2890, 2899, 77 L.Ed.2d 490 (1983); Jones v. Rath Packing Co., 430 U.S. 519, 535, 97

S.Ct. 1305, 1309, 51 L.Ed.2d 604 (1977).

3 Hillsborough County, 471 U.S. at 713, 105 S.Ct. at 2375; Rice v. Santa Fe Elevator Corp.,

331 U.S. 218, 230, 67 S.Ct. 1146, 1152, 91 L.Ed. 1447 (1947).

4 Hillsborough County, 471 U.S. at 713, 105 S.Ct. at 2375; Law rence County v. LeadDeadw ood School Dist. No. 40-1, 469 U.S. 256, 260, 105 S.Ct. 695, 698, 83 L.Ed.2d 635

(1985); Silkw ood v. Kerr-McGee Corp., 464 U.S. 238, 248, 104 S.Ct. 615, 621, 78 L.Ed.2d 443

(1984); Florida Lime & Avacado Grow ers, Inc. v. Paul, 373 U.S. 132, 142-43, 83 S.Ct. 1210,

1217-18, 10 L.Ed.2d 248 (1963). DISCUSSION

The statute provides in pertinent part:

[N]o State

... shall enact or enforce any law, rule, regulation, standard, or other provision

having the force and effect of law relating to rates, routes or services of any air carrier having

authority under Title IV of this Act to provide air transportation.

49 U.S.C.App. § 1305(a)(1).

Although the ADA was passed in 1978, until recently no one even supposed that section 1305

preempts state tort claims. 1 The Seventh Circuit noted that "[s]tate courts award damages every day

in air cra s h cases, notwithstanding that federal law preempts the regulation of safety in air travel,"

confidently adding that "[t]he Federal Aviation Act does not expressly preempt state damages

remedi es." Bieneman v. City of Chicago, 864 F.2d 463, 471 (7th Cir.1988). More recently,

however, the airlines have begun to argue that various state-law tort claims are expressly preempted

by section 1305, especially in the wake of Morales v. Trans World Airlines, Inc., --- U.S. ----, 112

S.Ct. 2031, 119 L.Ed.2d 157 (1992).

Sta t e law is displaced by federal law under the supremacy clause where (1) Congress

expressly preempts state law; 2 (2) congressional intent to preempt is inferred from the existence of

a pervasive federal regulatory scheme; 3 or (3) state law conflicts with federal law or interferes with

the achievement of congressi onal objectives. 4 "[T]he question whether a certain state action is

pre-empted by federal law is one of Congressional intent. "The purpose of Congress is the ultimate5 Pilot Life, 481 U.S. at 45, 107 S.Ct. at 1552 (quoti ng Allis-Chalmers Corp. v. Lueck, 471

U.S. 202, 208, 105 S.Ct. 1904, 1909, 85 L.Ed.2d 206 (1985) (quoting Malone v. White Motor

Corp., 435 U.S. 497, 504, 98 S.Ct. 1185, 1189, 55 L.Ed.2d 443 (1978) (quoting Retail Clerks

Int'l Ass'n v. Schermerhorn, 375 U.S. 96, 103, 84 S.Ct. 219, 222, 11 L.Ed.2d 179 (1963)))).

6 See Shaw

v. Delta Airlines, Inc., 463 U.S. 85, 97, 103 S.Ct. 2890, 2900, 77 L.Ed.2d 490

(1983) (a state law relates to an employee benefit plan and is preempted "if it has a connection

with or reference to such a plan"). This language is "expansive," Pilot Life Ins. Co. v. Dedeaux,

481 U.S. 41, 47, 107 S.Ct. 1549, 1552-53, 95 L.Ed.2d 39 (1987), and "broadly worded,"

Ingersoll-Rand Co. v. McClendon, 498 U.S. 133, 137-40, 111 S.Ct. 478, 482-83, 112 L.Ed.2d

474 (1990). touchstone.' " 5 This case involves a claim of express preemption. We begin with the language of the

statute.

In evaluating the scope of § 1305(a) preemption, one must bear in mind its origin in the ADA,

an economic deregulation s t at ute. The Federal Aviation Act of 1958 (FAA), 72 Stat. 731, 49

U.S.C.App. § 1301 et seq. (as amended), conferred on the Civil Aeronautics Board economic

regulatory authority over interstate air transportation. The FAA did no t expressly preempt state

regulation of intrastate air transportation. In 1978, Congress amended the FAA after determining that

effici e ncy, innovation, low prices, variety, and quality would be best furthered by reliance on

competitive market forces in the airline indust ry. Congress enacted the ADA to dismantle the

pervasive federal economic regulation of the interstate airline industry. To prevent the states from

frustrating the goals of federal deregulation by establishing or maintaining economic regulations of

their own, Congress included in the ADA section 1305, which preempts the states from enforcing any

law "relating to rates, routes, or services" of any air carrier. Morales,

--- U.S. at ----, 112 S.Ct. at

2034.

Morales informs but does not squarely resolve this case. In M orales, the Supreme Court held

that the attem

pts of sev eral st ate attorneys general to enforce state laws prohibiting deceptive

advertising by the airlines were preempted by § 1305 (a). M orales first drew upon the broad

construction of the phrase "relating to" in the ERISA cases. 6 Thus, the phrase "relating to" means

"to stand in some relation; to have bearing or concern; to pertain; refer; to bring into association

with or connection with." M orales,

--- U.S. at

---- , 112 S.Ct. at 2037 (quoti ng Bl ack's Law

Dictionary 1158 (5th ed. 1979)). Consequently, "state enforcement actions having a connection with7 This ruling intimates no opinion concerning the possible preemptive effect of FAA safety

regulation of aircraft and carriers. See Public Health Trust of Dade Cty., Fla. v. Lake Aircraft,

Inc., 992 F.2d 291 (11th Cir.1993). No such issue has been presented in this case. We also have

no occasion to decide here whether and to what extent property damage claims are preempted by

§ 1305. or reference to airline "rates, routes, or services' are preempted" under section 1305. Id.

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

section 1305 preempts the states only from actually prescribing rates, routes, or services. --- U.S.

at

---- - ----, 112 S.Ct. at 2037-38. The Court also rejected the notions t hat "only state laws

specifically addressed to the airline industry are preempted" and that "preemption is inappropriate

when state and federal law are consistent." M o rales,

--- U.S. at ----, 112 S.Ct. at 2038. Laws of

general applicabilit y, even those consistent with federal law, are preempted if they have "the forbidden

significant effect" on rates, routes or services. --- U.S. at ----, 112 S.Ct. at 2039.

Morales acknowledged, however, that "[s]ome state actions may affect [airline services] in

too tenuous, remote, or peripheral a manner" to have preemptive effect. Morales, --- U.S. at ----,

112 S.Ct. at 2040 (quoting Shaw, 463 U.S. at 100 n. 21, 103 S.Ct. at 2901 n. 21). Refusing to state

exactly where the line would be drawn in a close case, the Court obser ved that the facts bef ore i t

presented no close question of the connection between the regulation and air fares.

While under Morales the scope of state laws that "relate to" servi ces must be broadl y

interpreted, the nature of the "services" preempted by § 1305(a) is more narrow than might at first

be supposed. Hodges contends that "services" must be so narrowly int erpreted as to preempt n o

common law tort or negligence cause of action. Delta argues the contrary, cit ing a dictionary

definition of "services" as "useful labor that does not produce a tangible commodity." Webster's

Ninth New Collegiate Dictionary 1076 (1990). We do not agree completely with either position.

Considering the definition of "services" that is most plausible in light of the ADA's purpose

and historical re gulat o ry antecedents, it appears that "services" is not coextensive with airline

"safety". Therefore, insofar as state law or regulation imposes liability on airlines for breaching tort

duties related to the safety of persons, it should not be preempted by § 1305(a). 7 The intent of this

distinction is to secure by federal preemption the benefits of ec o no mic deregulation of the airline8 Compare the ADA with ERISA legislation, in which Congress provided several federal causes

of action to replace the preempted state causes. See Pilot Light, 481 U.S. at 43-44, 107 S.Ct. at

1551.

9 Silkw ood, 464 U.S. at 251, 104 S.Ct. at 623 (citing United Constr. Workers v. Laburnum

Constr. Corp., 347 U.S. 656, 663-64, 74 S.Ct. 833, 836-38, 98 L.Ed. 1025 (1954)). industry, while maintaining the traditional role of state law in adjudicating bodily injury claims.

Carefully read, neither Delta's definition of "services" nor others in the dictionary are

open-ended. Webst er's Third New International Dictionary (1976) adds some of the following

definitions:

An action or use that furthers some purpose; supply of needs [ e .g., a vending machine for the

service of passersby]; railroads and telephone companies produce s ervices —useful labor that

does not produce a good; provision for conducting a public utility [ e.g., air freight service

]; regularly scheduled trip on public transportation ( [free air services ] ).

"Services" g e nerally represent a bargained-for or anticipated provision of labor from one party to

another. If the element of bargain or agreement is incorporated in our understanding of services, it

leads to a concern with the contractual arrangement between the airline and the user of the service.

Elements of the air carrier servic e bargain include items such as ticketing, boarding procedures,

pro visio n o f fo o d and drink, and baggage handling, in addition to the transportation itself. These

mat t ers are all appurtenant and necessarily included with the contract of carriage between the

passenger or shipper and the airline. It is these features of air transportation that we believe Congress

intended to de-regulate as "services" and broadly to protect from state regulation.

This definition of services is consistent with congressional intent regarding the ADA, with the

CAB's understanding of the ADA, and with other sections of the statute. Significantly, neither the

ADA nor its legislative history indicates that Congress intended to preempt the application of general

tort law to personal physical injury inflict ed by an airline while providing its services, or that Congress

even considered such preemption. 8 "This silence takes on added significance in light of Congress's

failure to provide any federal remedy for persons injured by such conduct. It is difficult to believe

that Congress would, without comment, remove all means of judicial recourse for those injured by

illegal conduct." 9

The CAB's statements implement ing the ADA strongly support our view that the ADA was10 44 Fed.Reg. 9948, 9951 (Feb. 15, 1979). The CAB also opined:

[A] state may not interfere with the services that carriers offer in exchange for their

rates and fares. For example, liquidated damages for bumping (denial of

boarding), segregation of smoking passengers, minimum liability for loss, damages

and delayed baggage, and ancillary charges for headsets, alcoholic beverages,

entertainment, and excess baggage would clearly be "service" regulation within the

meaning of section 105.

Id.

11 Immediately after the promulgation of the ADA, the CAB realized that the transition from

state to federal regulation would take time. Liability insurance rules varied among the states. As

an interim rule the Board adopted as their own the existing state regulations on minimum liability

insurance. See id.

12 14 C.F.R. § 205.5(a) (1992).

13 See Nader v. Allegheny Airlines, Inc., 426 U.S. 290, 300, 96 S.Ct. 1978, 1985, 48 L.Ed.2d

643 (1976). concerned solely with economic, not safety deregulation. The Board concluded that

preemption extends to all of the economic factors that go into the provision of the quid pro

quo for passenger's [sic] fare, including flight frequency and t iming, liabilit y limit s, reservation

and boarding practices, insurance, smoking rules, meal service, entertainment, [and] bonding

and corporate financing. 10

Following passage of the ADA, the CAB took the position that the states are preempted from

regulating the kinds and amounts of insurance that carriers are required to have, 11 but Department

of Transportati on regulations continue to require that airlines maintain insurance "for bodily injury

to or death of a person, or for damage to property of others, resulting from the carrier's operati on or

maintenance of the aircraft in air transportation provided under its authority from the Board." 12 If

liabilit y for personal injuries were preempted, such insurance would hardly be necessary, because

there is no federal compensation scheme for injuries to airline passengers.

That Congress did not intend section 1305 to preempt all state tort claims for personal injury

is bolstered by the continued existence of the preemption saving clause. Section 1506 of the FAA

provides that "[n]othing

... in this chapter shall in any way abridge or alter the remedies now existing

at common law or by statute, but the provisions of this chapter are in addition to such remedies." 49

U.S.C.App. § 1506. Before the ADA, this section permitted not only limited economic regulation

of intrastate flights, but also enabled the states to enforce their own general laws against the airlines. 1314 See Morales, --- U.S. at ----, 112 S.Ct. at 2034.

After the passage of the ADA, the preemptive reach of section 1305(a) has curtailed the saving power

of section 1506, 14 but since Congress left that section intact, we cannot assume that Congress meant

completely to undermine the saving clause.

Finally, unlike the NAAG Guidelines in Morales, enforcement of tort remedies for personal

physical injury ordinarily has no "express reference" to services as defined above. See Morales,

---

U.S. at ----, 112 S.Ct. at 2039. Consequently, enforcement of such tort duties normally will not have

"the forbidden significant effect" on airline services. Id. Morales relied in part on the fact that the

state restrictions on airfare advertising had a significant economic effect o n fares. Generally,

however, state tort laws concerning safety can be enforced consistently with and distinctly from the

services that Congress deregulated.

Unfortunately, the result this panel advocates cannot be squared with a previous unpublished

opinion of our court in Baugh v. Trans World Airlines, Inc., 915 F.2d 693 (1990). There, the court

affirmed the dismissal of a passenger's claim that during a flight from Houston to New York, a

stewardess stomped on her foot and i njured her. This court reasoned that the manner in which a

flight attendant performs her work "arises out of the services" afforded passengers by TWA and is

therefore preempted by § 1305. B augh is inconsistent with the present case, because negligently

stomping on a passenger's foot bears on passenger safety but only tenuously relates to the airline's

services. We are bound by B augh. This circuit has considered its unpublished opinions to be binding

precedent, although we discourage their citation. Fifth Circuit Local Rule 47.5.3.

Even if Baugh did not appear to control this case, our vindication of airline s afety claims

under state law would not extend to all state tort claims. To permit any tort suit to be filed simply

because it is plausible under state law could conflict with the deregulation of "rates, routes and

services." Two examples of preemption will suffice. In O'Carroll v. American Airlines, Inc., 863

F.2d 11 (5th Cir.), cert. denied, 490 U.S. 1106, 109 S.Ct. 3158, 104 L.Ed.2d 1021 (1989), the

plaint iff and his cousin were removed from a commercial airline flight because they were loud,

boisterous, and intoxicated. 863 F.2d at 12. O'Carroll sued, alleging that he was wrongfully evictedfrom the flight. This court vacated O'Carroll's sizeable jury verdict, holding that his state law claims

were preempted by section 1305. In O 'Carroll, we did not discuss the scope of section 1305 because

the state law claims arising from the allege d wro ngful exclusion undeniably related to the services

provided by the airline. Enforcement o f O'Carroll's state law claims would result in significant d e

facto regulation of the airlines' boarding practices and, moreover, would interfere with the

implementation of federal regulations granting the airlines substantial discretion in this matter.

Similarly, if we applied § 1305 unencumbered by Baugh, the tort and contract claims asserted

by the plaint iff in West v. Northwest Airlines, 995 F.2d 148 (9th Cir.1993) would be preempted under

our interpretation of "services". Plaintiff West sued after he was "bumped" from the overbooked

airline flight for which he had reserved a seat. After remand for reconsideration in light of M orales,

the Ninth Circuit held, over a dissent, that West's state law claims were too tenuously connected to

"rates, routes and services" to be preempted by § 1305. The majority did find West's punitive damage

claim preempted. Under either M orales or the analysis we would prefer, it is difficult to see how a

lawsuit for overbooking would not "relate to" airline "services."

HODGES' CLAIMS

Hodges alleged that Del

t a was negligent in allowing the case of rum to be stowed in the

overh ead st o rage bin. This tort claim for personal injury has no specific "reference to" airline

services. S ee Morales,

--- U.S. at ----, 112 S.Ct. at 2039; S haw, 463 U.S. at 97, 103 S.Ct. at 2900.

Nor would enforcement of her claim significant ly affect Delta's services, as defined above. As other

cases have recently held, this type of claim does not relate to Delta's services and is not preempted

by section 1305. See Public Health Trust of Dade Cty., Fla., v. Lake Aircraft, Inc., 992 F.2d 291

(11th Cir.1993); Margolis v. United Airlines, Inc., 811 F.Supp. 318 (E.D.Mich.1993).

Nevertheless, under Baugh, we are compelled to affirm and to suggest en banc review.

CONCLUSION

For the foregoing reasons, the district court's grant of summary judgment is AFFIRMED.