Is Poverty a Black Thing?
The poor performance of African economies and economies where the people are of colour other than whites have prompted people to ask whether poverty is a black or a colour thing.
This question about poverty being a black thing has gained credence in many circles. This question is also asked about Africa because it is the poorest continent on earth. It is a continent where for 30 years there has not been any concrete economic development compared to the rest of the world. It lags behind all the other continents in terms of economic and social development. Most if not all the countries African continent have similar economic problems namely high unemployment, high inflation, higher deficits, poor state of economic and social infrastructures including roads, harbours, education, airports, telecommunication, health and sanitation and rail system. Africa is a continent where people die for lack of food, water, and against common preventable diseases. It is a continent full of misery, desperation and hopelessness. It is a continent where very few children under the age of five survive the menace of the six killer diseases. It is a continent where people have no access to basic necessities of life. It is a continent where people walk several miles for water and children have no access to education and medical services. It is a continent where rural life is nothing but a condemnation to abject poverty. It is a place where people live in mud/thatched houses with bamboo/raffia leaves as roofing sheets. It is a continent full of wars and armed conflicts. It is a continent of dictators and kleptocrats, a continent where corruption is rewarded and achievement is shunned, a continent where entry into public life/service is seen as a means to acquiring wealth and a means of getting top positions. It is a continent where life expectancy is low and corruption very high.
So is it a colour or race thing? I must say that I do not agree or subscribe to the notion that poverty has any colour inferring in it and that the underdevelopment and impoverishment which is prevalent on the African continent is deeply rooted in centuries of slavery and colonialism, coups, armed conflicts, brain drain, endemic corruption and mismanagement, dictatorial rule, Kleptocracy, foreign interventions and the fight for control of the natural resources.
Slavery and Colonialism
Centuries of slavery and colonialism deprived the continent of her able human and economic resources. The able men and women were carried away to work in the plantations of the Americas (in all about 30 – 40 million people) and they helped to make America and Europe what they are today. Millions of young Africans were forced to abandon the continent of their origin and were transported several thousands of miles away unto a land where they had no historical attachment with. They travelled in very deplorable conditions, without adequate food, water and air. When they reached the so called new worlds they were made to work from morning till sun set the only time they had on their own was Sundays in which they had to everything that they needed on their own such planting their crops, repairing their homes. It was a very nasty experience having to work for ours without pay. Some even worked till they dropped dead. The slave trade deprived the continent of her energetic men and women a vital resource in any development process and sunk the continent into intellectual wilderness.
Looting of Resources
About the same time that slavery was being vigorously pursued, the natural resources including timber, gold, diamond, tin ore, ivory and many more were looted in large quantities by the European countries namely Belgium, Britain, France, Germany, Portugal, Spain and Italy. After slavery was abolished the looting of the natural resources continued. The irony is that virtually all the income from these resources was used to finance the economic and the infrastructural development of the European countries with little or nothing at all being used to develop the various countries where these resources came from. A clear example is the case of Democratic Republic of Congo where King Leopold II of Belgium enslaved the Africans, forced them to work without pay, killed about 10 million and looted the country of her resources and virtually nothing was used to invest in the country except guns which the Belgium army used to terrorise and kill the Africans. When the DRC was transferred from Leopold II to the Belgium state the looting and killing continued till DRC gained her independence in the 1960s. In fact DRC (Congo Free State) was the main supplier of rubber a vital raw material for the tyre industry and all the money from the sale of the rubber went to Belgium. King Leopold II was able to transform Belgium as one of the poorest countries in Europe into one of the wealthiest courtesy the enslavement and looting of Africans and their resources.
Belgium was not alone in what she did to the continent. Britain, France, Spain, Portugal, Germany and Italy all looted Africa of her gold, diamond, ivory, timber, cobalt, coltan, tin ore, bauxite, manganese and all the minerals you can think of. The Africans who resisted the illegal activities were killed in their millions as happened in South West Africa (now Namibia) where the Germans in 1904 to 1907 committed the first genocide of the 20th Century by killing the Herero and the Namaqua people. While Europe became richer Africa became poorer and the trend continued till the 1950s when the African countries started to gain their ‘independence’ beginning with Libya in 1951, Sudan, Morocco, Tunisia all in 1956 and Ghana in 1957.
With little or no investment in the continent the various post colonial governments inherited countries with practically no infrastructure: roads, rails, harbours, telecommunications, education, health and sanitation and airports. The only areas which saw some few infrastructure investments during the colonial days were those where raw materials were heavily extracted. The attainment of independence did not come on silver Plata. Algeria, Zimbabwe, Angola, Kenya, Namibia and to some extent South Africa all attained their independence from their colonial masters through arm struggles and in most cases the few infrastructures that existed were destroyed due to the conflicts.
Foreign Involvement
As if slavery, colonialism and the looting of the continent’s resources were not enough the continent became a battle ground during the Cold War as the two super powers and their allies battled for influence and control on the continent mainly for her resources. As a result many African governments who were deem to be pro-Russia or America were overthrown using the military. A case in point was the overthrow of Dr. Kwame Nkrumah of Ghana on February 24th, 1966. Another example is the overthrow and assassination of Patrice Lumumba of Congo on January 17th 1961.Other leaders such as Nelson Mandela was imprisoned for either advocating for independence or improvement of conditions of Africans. CIA and the western intelligence community have been implicated for engineering the assassinations and overthrow of elected leaders of Africa. For example Larry Devlin, the CIA Station Chief in Congo during Patrice Lumumba’s days spoke to Washington Post in December 2008 saying he refused an order to assassinate Patrice Lumumba but his refusal did not stop the CIA and the Belgium government from overthrowing and assassinating him. The assassination attempt on Gamal Nasser of Egypt on 24th October 1954 and the assassination of President Anwar Sadat in 1981 were alleged to be the work of Britain’s M16 due to their refusal to hand over the administration of the Suez Canal to the British.
The CIA, KGB and their allies encouraged and financed wars and political instabilities throughout the continent. Angola became the battle ground for the CIA, KGB and the Chinese as each tried to gain control over the country, her people and resources. The civil war that engulfed Angola in 1975 only ended in 1991 after 26 years of conflict. When the war ended the few infrastructures that remained after the war of independence (1961-1974) were gone.
On March 7, 2004 Simon Mann a British citizen, a veteran mercenary and former officer of Britain’s elite Special Forces (SAS), and 69 other mercenaries were arrested at a military airfield outside Harare, Zimbabwe .Their destination was Equatorial Guinea in West Africa. Their mission was to overthrow Teodoro Obiang Nguema, president of oil-rich Equatorial Guinea, a nation of 600,000 people. During his defence he mentioned some powerful members of the British establishment as his financiers and backers including Jack Straw UK Justice Minister, Peter Mandelson former European Union Trade Commissioner and now Secretary of State for Business, Enterprise &Regulatory Reform, Sir Mark Thatcher a businessman and son of former British Prime Minister Margaret Thatcher, Jeffrey Archer a key Tory member who was convicted for perjury and Ely Smelly Calil a Lebanese oil trader accused of bankrolling the plot. Mark Thatcher was arrested in South Africa and charged with supplying the aircraft that carried Simon Mann to Harare. Mr. Thatcher pleaded guilty in South Africa and was later made to pay 300,000 pounds in exchange for a prison sentence. The coup plotters were to put Severo Moto, an opposition leader living in Spain in charge of the country. The coup was to give both the plotters and their backers unquestionable free access to the oil resource in the nation. If the coup had succeeded Mann and his cronies would have turned Equatorial Guinea into one of the usual sad stories in Africa- bloodshed, corruption, mismanagement, poverty and what have you. The governments of Spain, South Africa and others in the west were seriously implicated for being privy to the plot. Thanks to the vigilance of the Robert Mugabe regime the coup was nip in the bud. Unfortunately, most resource rich countries on the continent have not been all that lucky.
Among those mercenaries who sought to return Africa to their former colonial masters was Bob Denard. In fact, Simon Mann is just a small fish compared to Bob Denard, a French who made a career as a mercenary overthrowing leaders in Africa. When Bob Denard died in 2007, he had more than a dozen of coups to his credit. Four of those coups took place in Comoros Island alone. French author Jean Guisner, who has followed Denard’s career and written extensively about the French government, says Denard did nothing that was contrary to French interests – and he allegedly acted in close cooperation with intelligence services. Denard’s mercenary career took place between the 1950s and the 1980s. During that period, he is reported to have been involved in post independence Nigeria, Benin in 1977, Angola, Zaire – now DRC and the former Rhodesia – which is now Zimbabwe. Registering their frustration and lack of justice for the Comorians, Mr. Abdou Soule Elbak, former president of Grande Comoro said “This man sullied our history”, referring to Denard. “I regret he was not made to answer to all the crimes he committed in our country, the murders and the torture which he was guilty of,” said Moustoifa Said Sheikh, leader of the Democratic Front Party. All these mercenary activities took place on the continent because of the natural resources.
The product of all these were the political instabilities and the wanting destruction of lives and property that have bedevilled Africa till today. As the elected leaders of the continent were assassinated, overthrown and subjected to all forms of cold war tactics including bribery, arm twisting and blackmail the continent degenerated and faulted on all aspects of human endeavour. The new crop of leaders who replaced the post colonial independence leaders and who were largely puppets of the European and American governments became increasingly authoritarian and corrupt. Joseph Mobutu Sese Seko who became the choice of the Americans after they help to assassinate Lumumba ruled Congo for 32 years and in those years the country became poorer as Mobutu and his cronies got richer and the western countries notably USA and her allies had free hand looting the mineral resources most importantly cobalt a very important mineral needed for missile development. Little development activities was carried out by Mobutu. As a result Congo today can only be accessed by boats and canoes mainly through the River Congo.
As tyrants and dictators gained the support of western governments and did whatever they wanted with their economies without questions their people became poorer and hopelessness and desperation were the hallmarks of their lives. As the little money that came into government coffers were taken by corrupt government officials and civil servants there were almost no money to carry out infrastructural development and the poverty deepened. Poverty, desperation and hopelessness visited the people and coupled with their inability to change their leaders democratically, dissents were sowed among the population which serve as breeding grounds for more coups, civil wars and civil disturbances. This was evidence in Ghana, Nigeria, Niger, Ivory Coast, The Gambia, Liberia, Mauritania, Algeria, Gabon, Togo, Cameroon, Equatorial Guinea, Guinea Bissau, Central Africa Republic, Chad, Sudan, Ethiopia, Uganda and Sierra Leone all experienced coups in the 1960s, 1970s, 1980s and even in the early 1990s. These waves of coups were followed by civil wars that hit Liberia, Sierra Leone, Ivory Coast, Congo, Chad, CAR, Somalia, Uganda, Sudan, Angola, Niger and Guinea. These wars apart from it human cost also contributed to the destruction of roads, harbours, airports, rail lines, telecommunications, hospitals, schools and the livelihoods of the people. With the absence of infrastructures the countries have been unable to make any headway in terms of economic development.
World Bank, IMF & the Role of Foreign Corporations
The World Bank and the IMF (Bretton Wood Institutions) and foreign companies have also played their part in making poverty endemic on the continent. Most African countries incurred billions of debt through loans contracted from the Bank and IMF. Most of these conditional loans were used to service debts already owned by these poor countries. The loans were also used to pay foreign expatriates who came to the continent as ‘technical experts’.
Some of these loans were also used to undertake projects and programmes that benefited only the rich. Again part of the loan was also siphoned away by corrupt politicians and civil servants.
The structural adjustment programme (SAP) forced on the poor African countries by the Bank and the IMF forced the various governments to abandon their support for the public sector with serious consequences. The withdrawal of farm subsidies in particular has made it difficult for farmers to compete with their Western counterparts who receive millions of dollars of government subsidies every year. The unrests and disturbances over food shortage and high food prices that occurred in Egypt, Haiti, Ivory Coast, Liberia, Mauritania, Indonesia, Afghanistan, Eritrea, Somalia and Sierra Leone in 2008 were the direct result of the Bank and IMF bitter pills prescribed to these poor countries.
Due to SAP and other policies of the Bank and IMF investment in education, health, transportation and other sectors of the economy declined considerably. The governments were also forced to privatise state owned companies. The sad aspect of this exercise was that almost all the companies went to foreigners and the proceeds used to settle debts already owned by these poor nations. Unable to pay their debts and more cash trapped these poor countries turned to the bank and IMF for more loans and the Bank response was open up your markets for foreign goods and accept globalisation. As a result the continent has become a dumping ground for foreign goods. Unable to compete with the influx of cheap foreign goods most local firms have no choice but to close down, laying off several millions of workers and devastating many families. Mr. John Jenkins the author of the ‘Confessions of an Economic Hit Man’ has written extensively about how the Bank, IMF and the various big cartels and corporations conspired to keep Africans and the developing world in the state in which they are today. Please watch John Jenkins on youtube as he tells his extraordinary story on youtube. http://www.youtube.com/watch?v=yTbdnNgqfs8
The presence of companies such as Shell, Mobil, Chevron, BP, Total, Rio Tinto, Texaco, BHP Billiton, Anglo-American and others have contributed to the high poverty levels on the continent. These companies who are mostly resource extraction in nature have destroyed the once rich soils of Africa, forcing many farmers to abandon their farms and loosing their livelihoods. Rivers, wells and streams used by the people for their everyday activities such as washing and drinking have been polluted by these profit making companies. Fishing in most mining and oil drilling communities has ceased as pollution has killed fish stocks in these rivers and lagoons rendering the fishermen unemployed. Communities which were once beaming with life are now ghost communities as land, rivers, lagoons and wells have been destroyed. Respiration, nausea and other mining related diseases are on the increase in many communities where mining and oil drilling are taking place but these profit making companies have abandon their corporate social responsibilities which they owe to the people. In August 2006 a Dutch company called Trafigura dumped highly toxic waste in Abidjan, Ivory Coast killing 17 people and sickening thousands. Such inhumane acts byTrafigura is just a tip of the iceberg.
Brain Drain
The poverty on the continent has also come about as result of serious brain drain that has hit the continent in recent times. The flight of doctors, engineers, architects, lawyers, judges, bankers, accountants, teachers, nurses, planners, agricultural experts and others have limited our ability to implement development projects and programmes. The flight of these intellectuals has rendered many government agencies very weak. In some communities there are hospitals without doctors and nurses. In others there are universities and colleges without lecturers and teachers. Countries like Malawi, Zimbabwe, Nigeria, Ghana, and Liberia have lost so much of their professionals to the very rich countries of Europe and America so much so that many of their sectors have resorted to hiring foreign expertise in order to cope. For example there are more Malawi doctors in Manchester City alone than the whole of Malawi combined. The irony is that governments use scarce resources to train these intellectuals only for them to leave the country for greener pastures abroad. Britain and the US are major recipient of these brain drain and even though they are aware of the tremendous negative effect it is having on these poor developing countries, they have done nothing to discourage it, in most cases they have encouraged it.
Corruption and Mismanagement
Corruption is another cancer that has tragically made the continent very poor. From South Africa to Egypt there is no country where corruption is not endemic. According to the Africa Union (AU) around $148 billion are stolen from the continent by its leaders and civil servants. In 2006 Forbes’ list of most corrupt nations had 9 out of the first 16 countries coming from Africa. Since oil was first discovered in Nigeria about 50 years ago, several billions of dollars have been realised from its but today the whole population continue to live in abject poverty and the country has nothing to show for it. As a result able men and women are battling dangerous seas just to enter Europe and try their luck. Others have resulted to 419 a popular scam used to trick people into given out their money and valuables. Those who seem to have benefited from the oil are corrupt politicians, civil servants and the big oil corporations such as Shell, Mobil, BP and their American counterparts. In fact Nigeria has consistently featured in the top 1% of the most corrupt nation on the planet. Between 2005 and 2007 several state governors and their immediate families were arrested by Scotlandyard in London on corruption and money laundering charges. Among them are James Ibori of oil rich Delta State and his wife Theresa who had their 35 million dollar asset frozen by the English court. Mr. Ibori earns about a thousand dollars a month but during his eight years as a state governor he managed to acquire wealth to the tune of $35m and was a key financial contributor to the campaign of the current president of Nigeria. He owns a private jet and lavish London home. Another corrupt governor is Diepreye Alamieyeseigha, governor of oil-rich state of Bayelsa who was also arrested in London for money laundering charges. Mr. Alamieyeseigha broke his bail conditions and evaded capture in Britain by dressing up as a woman. When Police conducted a search in his London home they discovered one million pounds worth of cash in his home. Another governor who was arrested in England was Joshua Dariye of Plateau State. He was arrested in a London hotel for stealing money meant for development of his state. In South Africa Jacob Zuma is still battling it out with the court for his part in the multi-billion arms deal in 2001 in South Africa. He was forced to resign as Deputy President of South Africa. The late Mobutu in his 32 years as President of Zaire, now DR Congo amassed several billions of dollars belonging to the Congo people. In 2006 former president of Malawi Bakili Muluzi was arrested for pocketing $12m donated to his poor country by foreign governments. Again former Zambia president Frederick Chiluba was arrested together with two business men Aaron Chungu and Faustin Kabwe and charged with 11 counts of stealing money meant for the Zambia’s development. In Equatorial Guinea where oil export has earned the country billions of dollars, the 600,000 people living in the country continue to live in poverty while Teodoro Obiang Nguema and his cronies continue to siphon the oil revenue with no accountability. Gabon and Angola both Oil exporting countries are no different. In fact, the governments in Gabon and Equatorial Guinea can best be described as Kleptocracy that is government by thieves. In countries such as Nigeria, Egypt, Cameroon, The Gambia, Sudan, Uganda, Libya, Tunisia a Kleptocracy class of people have replaced anything democracy. In these countries very few people continue to remain in power and the people have no say in the way their country is govern or run. For example Gaddafi of Libya has been in power for 39 years now. Omar Bongo of Gabon 31 years, Teodoro Obiang Nguema of Equatorial Guinea 28 years, Robert Mugabe of Zimbabwe 28 years, Hosni Mubarak of Egypt 27 years, Paul Biya of Cameroon 26 years, Yoweri Museveni of Uganda 22 years, Omar Al Bashir of Sudan 19 years, Iddriss Derby of Chad 17 years, Yahya Jammeh of Gambia 14 years, and the list is unending. What is clear is that these unelected leaders continue to amass wealth at the expense of their poor countries and continue to mismanage whatever remains of their corrupt acts. Because most of the leaders are former military officers or former rebels with no grasp of economics and management, they are unable to formulate any good economic policies that will make their economies grow hence poverty has become a part of the people but their leaders know not what poverty is. A visit to the Niger Delta region of Nigeria shows that majority of the people are unemployed. Years of oil spills have made the soil unfit for any agricultural activity. Their streams and wells are polluted and the people have no access to basic necessities of life even though billions of dollars is realised from the sale of oil from that region every year. In the 1990s economic hardship, abject poverty, and destruction of the environment forced the people of Ogoniland to demand a say in which Shell operates but the military regime led by Gen. Sani Abacha arrested the environmentalists led by Ken Sorowiwa and executed them. It is these monies meant for the development of the states that these state governors were caught trying to bank away in Europe. Every effort to get the Nigeria government to develop the oil rich areas fell on death ears until the unemployed youth took up arms against the federal state. They kidnapped foreign oil workers and demanded ransom before their victims were released. They disrupted the oil production forcing the oil companies to move several miles offshore for their own safety but they were not safe either. Eventually, the companies had to reduce their output by 25% in 2007-8. These disruptions affected supply of oil in the world market forcing the price to skyrocket to $140 a barrel in the summer of 2008.
In DR Congo it is estimated that gold and diamond deposits alone could fetch the country 23 trillion dollars not to mention the abundance of timber and other several minerals that are found in large quantities such as columbo-tantalite (coltan) and cassiterite (tin ore) yet years of corruption, mismanagement, conflicts and foreign involvement have made this resource rich nation one of the poorest in the world. Coltan for example is used in every mobile phone and a number of electronic devices in the world. Cassiterite used in electronic circuit boards is the most traded metal on the London Stock Exchange. It is often said that western nations cannot maintain their current level of lifestyle without Congo and most corporations in the west can easily go bust without Congo. The question is if Congo is the blood line of the west and the west is rich because of Congo then why is Congo so poor? And where are the billions of dollars from the sale of these minerals? The answer lies in the history of the nation which is corruption, slavery, colonialism, assassinations, armed conflicts and foreign involvements. Since her independence from Belgium in 1960 there has not been peace in the country. Several millions of Congolese have died about 4 million of them in the last eight years alone and most of the dead are civilians. The conflict in Congo is largely about who controls the vast resources in he country. The huge size of the country has made its administration very difficult. And the problem is exacerbated by weak, ill-trained, undisciplined and very corrupt Congolese army who abduct, terrorise, rape and murder the people instead of protecting them.
The various militia groups operating in the east of the country have made life very difficult and unbearable for the civilian population. These armed groups with backing from Rwanda and Uganda have largely operated in the region with impunity – abducting, raping, massacring and stealing from the poor people. Jean Pierre Bemba who is now facing war crimes in The Hague was a notorious warlord whose activities have not escaped the international criminal court (ICC). Another notorious warlord who is still operating with impunity is Laurent Nkunda. A visit to Walikale town in the east of the country explains in vivid terms why the people are so tragically poor. People have abandoned their farms and moved to the mines but whatever is made from the mining is taken away from them by the Congolese army and the ever present predators i.e. the armed groups. These armed groups force the people to mine the minerals without pay. Unable to farm and not paid for their toil, most of them have to credit food in order to survive. Everyday in Walikale about 16 aircraft fly out of the city with loads of minerals bound for Rwanda. These stolen minerals further find their way in the western mineral market in London and Switzerland. The proceeds are shared by the warlords in Congo, the Generals, politicians and the businessmen in Rwanda and the rest is used to acquire weapons that are used to terrorise the people and prolong the war. Please click the link below to watch a video of Congo.
http://www.youtube.com/watch?v=Io8c81xHLmw
Recommendations and Conclusion
It is clear that several forces within and outside the continent have contributed to making the continent the poorest on earth. But there is no time to look back but a time to look forward and get our acts together, organise ourselves and start doing something. The progress that has been made by China, India, Korea, Taiwan, Singapore, Malaysia the Gulf countries including Bahrain, Kuwait, United Arab Emirates Saudi Arabia and Qatar over the last 30 to 50 years shows that poverty has got nothing to do with colour or race. Nations become poor because their leaders fail to formulate policies and programmes that address their problems.
To reverse the negative impact of centuries of slavery and colonialism on one hand and decades of coups, civil wars, corruption, mismanagement and foreign interventions on the other hand, the governments should focus their attention on reforming their democratic institutions and allow free and fair elections to be organised. They should do more to fight corruption and mismanagement, establish independent corruption watchdogs, strengthen the judiciary, and be accountable to the people.
They should curtail the power of the army and embark on concrete, sound and result driven policies and provide more incentives to discourage brain drain.
The governments should embark on building social and economic infrastructures – schools, hospitals, roads, rail lines, telecommunications, airports, harbours, markets, that will lay the foundation for economic and social development. They should establish research institutions to find out how best to use the various natural resources to benefit the people. As the saying goes ‘resources are not but they become’ that is to say you may have all the natural resources in the world but if you do not have the ability to convert them into useful commodities/ consumables to benefit the people they are nothing.
The AU should be more concerned about fighting poverty than just been a talking shop for corrupt, kleptocrats and dictators.
Lord Aikins Adusei
http://www.articlesbase.com/education-articles/is-poverty-a-black-thing-728359.html
Preemption of State Law Intentional Tort Actions Under the Airline Deregulation Act of 1978
After years of tight government control over the airline industry, Congress chose to pursue a policy of economic deregulation, enacting the Airline Deregulation Act of 1978 (ADA). Areas formerly controlled by the federal government, such as the awarding of routes, the entry of new air carriers, and the setting of fares, were left to the airlines and the free market to determine. Congress, concerned that States might attempt to circumvent federal airline deregulation through their own state enforcement actions, included an express preemption clause in the ADA, which bars States from enforcing laws “related to a price, route, or service of an air carrier.” This apparently innocuous provision continues to cause confusion and divide courts over exactly what causes of action are preempted by the ADA.
Top-ranked Chicago personal injury attorney, Matthew A. Passen, examines one class of state-law based actions, intentional tort claims, and considers whether such actions are sufficiently “related to” an airline “service” for preemption under the ADA. For example, can a passenger who was refused boarding on a commercial airline and strapped to an immobile chair in the waiting area sue the airline for false imprisonment? Can a passenger detained by airline employees upon landing of an aircraft, wrongfully accused of stealing another passenger’s ring, and arrested by police, seek recourse against the airline for false arrest, intentional infliction of emotional distress or slander? Can an airline racially discriminate against a passenger or airline employee with impunity?
As the following discussion reveals, the answer to these questions often depends entirely on how broad or narrow courts interpret the ADA’s statutory phrase, “related to a . . . service of an air carrier.” If a narrow reading is adopted, plaintiffs will have their day in court. If, on the other hand, a court interprets the preemption provision broadly, airlines will essentially receive immunity from state-law intentional tort actions.
Often, the best answer to such questions of statutory interpretation is found by reconsidering the purpose of the underlying statute containing the preemption provision. Here, the purpose of the ADA is straightforward: economic deregulation of the airline industry.
BRIEF HISTORY OF THE ADA’s PREEMPTION CLAUSE
Prior to 1978, the federal government heavily regulated the airline industry.1 Beginning with the Federal Aviation Act (FAA) of 1958,2 Congress created a regulatory organization, known as the Civil Aeronautics Board (CAB), to serve three main functions: award routes to airlines, control the entry of air carriers into new markets, and regulate fares for consumers.3 Still, Congress preserved state common law actions against airlines by including a “saving clause,” which provided: “Nothing contained 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.”4
In 1978, however, Congress changed courses with respect to airline regulation, determining that “maximum reliance on competitive market forces would best further ‘efficiency, innovation, and low prices’ as well as ‘variety [and] quality . . . of air transportation services.”5 Accordingly, Congress enacted the Airline Deregulation Act of 1978 (ADA),6 which gradually ended economic regulation of the airline industry in a series of steps over the years, including the elimination of the CAB.7
The ADA, unlike its predecessor, contained express federal preemption clause to ensure that “States would not undo federal deregulation with regulation of their own.”8 The ADA’s preemption clause states:
Except as provided in this subsection, a State, political subdivision of a State, or political authority of at least 2 States may not enact or enforce any law, regulation, or other provision having the force and effect of law related to a price, route, or service of any air carrier that may provide air transportation under this subpart.9
This preemption standard, while simply stated, has proven far more difficult to apply than Congress could have anticipated.
One source of confusion is Congress’ retention of the “saving clause,” which provides that “[a] remedy under this part is in addition to any other remedies provided by law.” 10 Some courts have found Congress preserved this clause in order to protect the states’ ability to control non-economic matters involving airlines within their respective borders.11 Still, the Supreme Court has referred to the saving clause as “a relic of the pre-ADA/no pre-emption regime,” without power to supersede the specific substantive preemption provision of the ADA. 12
The greatest source of confusion surrounding the ADA’s preemption clause concerns the ambiguous language of the statute itself. In particular, courts have struggled to advance a coherent framework for what types of causes of action are “related to a price, route, or service” for preemption under the ADA. Congress neither defined the terms nor specified what types of state action are preempted, and the Supreme Court has not drawn any distinct preemption lines.13 Consequently, lower courts have been left to apply their own, often conflicting, interpretations of the ADA’s preemption clause. Regardless of statutory interpretation, courts remain guided by fundamental principles of preemption doctrine.
BRIEF INTRODUCTION TO PREEMPTION DOCTRINE
The foundation for federal preemption of state law is based on the Supremacy Clause of Article VI of the Constitution, which provides: “This Constitution and the laws of the United States . . . shall be the supreme law of the land . . . anything in the Constitution or laws of any State to the contrary notwithstanding.”14 As a general rule, federal law preempts state law in three situations:15 (1) Express preemption: where Congress has explicitly preempted state law;16 (2) Field preemption: where Congressional intent to preempt may be inferred generally from the pervasiveness of a federal regulatory scheme in a particular area;17 and (3) Conflict preemption: where state law conflicts with federal law or interferes with the achievement of congressional objectives.18
Where Congress has included an express preemption clause in a statute, courts “typically do not consider the issue of implied pre-emption,” and instead simply “determine whether the state law in question falls within the scope of the statute expressly promulgated by Congress.”19 In other words, according to the Supreme Court:
When Congress has considered the issue of pre-emption and has included in the enacted legislation a provision explicitly addressing that issue . . . ‘there is no need to infer congressional intent to pre-empt state laws from the substantive provisions’ of the legislation. Such reasoning is a variant of the familiar principle of expression unius est exclusio alterius: Congress’ enactment of a provision defining the pre-emptive reach of a statute implies that matters beyond that reach are not pre-empted.20
Because Congress included an express preemption clause in the ADA, courts look to the specific statutory language in order to determine whether a particular state action is preempted. Unfortunately, the literal text of the ADA’s preemption clause is ambiguous; and the Supreme Court has not resolved the uncertainty.
SUPREME COURT INTERPRETATION OF
THE ADA’s PREEMPTION CLAUSE
The United States Supreme Court has interpreted the ADA’s preemption provision only twice since 1978. In Morales v. Trans World Airlines, Inc.,21 the Court decided whether the ADA preempts States from regulating deceptive airline fare advertisements through enforcement of state consumer protection statutes.22 The Court held such actions were indeed preempted by the ADA.23
In reaching its decision, the Court focused on the statutory phrase “related to” in the ADA’s preemption provision. First, the Court looked to Black’s Law Dictionary for guidance, concluding that “the words thus express a broad pre-emptive purpose.”24
Second, the Court examined the similarly worded preemption provision of the Employee Retirement Income Security Act of 1974 (ERISA),25 which the Court had previously interpreted as having a “broad scope.”26 Therefore, the Court held: “Since the relevant language of the ADA is identical [to the ERISA preemption clause], we think it appropriate to adopt the same standard here: State enforcement actions having a connection with or reference to airline ‘rates, routes, or services’ are pre-empted” by the ADA.27 Although the Court in Morales declined to define with particularity the circumstances under which a state law “relates to” airline services, it held the state consumer protection guidelines at issue were sufficiently “related to” airline “price[s]” because enforcement of such guidelines would compel or restrict airline price advertising.28
Notably, however, the Court recognized there are limits to the scope of the ADA’s preemption clause.29 Specifically, the Court explained that state action affecting the airlines in “too tenuous, remote, or peripheral a manner” will not be preempted by the ADA.30 The Court declined to expand on this notion, instead stating, “[t]he present litigation plainly does not present a borderline question, and we express no views about where it would be appropriate to draw the line.”31
In 1995, the Supreme Court revisited the ADA’s preemption clause in American Airlines, Inc. v. Wolens.32 Here, the plaintiffs brought claims against American Airlines for breach of contract and for violations of the Illinois Consumer Fraud Act following the airline’s unilateral devaluation of frequent flyer mileage credits earned by the plaintiffs.33 Rather than focusing on the “related to” language of the ADA’s preemption clause, the Court examined the phrase “enact or enforce any law” in the provision.34
First, in accord with Morales, the Court held that the plaintiffs’ claims based on the Illinois Consumer Fraud Act were preempted by the ADA.35 The purpose of the Illinois statute, according to the Court, was “to guide and police the marketing practices of the airlines; the Act does not simply give effect to bargains offered by the airlines and accepted by airline customers.”36 Therefore, because the plaintiffs sought to “enforce [a] law” regulating “the selection and design of marketing mechanisms appropriate to the furnishing of air transportation services,” the plaintiffs’ claims under the Consumer Fraud Act were preempted.37
Second, the Court carved out an exception to ADA preemption for the plaintiffs’ breach of contract claim. The Court explained: “We do not read the ADA’s preemption clause, however, to shelter airlines from suits alleging no violation of state-imposed obligations, but seeking recovery solely for the airline’s alleged breach of its own, self-imposed undertakings.”38 Because the plaintiffs’ breach of contract claim (based on American’s modification of its frequent flyer program) sought to enforce the terms of a voluntary undertaking by the airlines, and did not seek to “enforce any law,” the claim was not preempted by the ADA.39
COURTS OF APPEALS’ CONFLICTING DEFINITION OF “SERVICE”
Although the Supreme Court interpreted the “related to” phrase in Morales, and the “enact or enforce any law” language in Wolens, the Court has not defined the term “service” of an airline, as it is used in the ADA’s preemption clause. Instead, the United States Courts of Appeals have been left to define the term, resulting in conflicting approaches.
In Charas v. Trans World Airlines, Inc., the Ninth Circuit adopted a relatively narrow definition of “service.”40 Because the term “service” is inherently ambiguous, the court looked to the purpose behind the ADA, which Congress enacted to protect “the economic deregulation of the airlines and the forces of competition within the airline industry.”41 As such, only state laws that interfere with economic deregulation and the forces of competition within the airline industry should be preempted.42 Conversely, ADA preemption should not “displace state tort law in actions that do not affect deregulation in more than a ‘peripheral manner.’”43
With these principles in mind, the Ninth Circuit defined “service,” as referring to “the prices, schedules, origins and destinations of the point-to-point transportation of passengers, cargo, or mail.”44 This definition includes “such things as the frequency and scheduling of transportation, and to the selection of markets to or from which transportation is provided.”45 This definition of “service” does not, however, encompass things such as “the pushing of beverage carts, keeping the aisles clear of stumbling blocks, the safe handling and storage of luggage, assistance to passengers in need, or like functions,” which the court found only peripherally affect airline deregulation or competition.46 Any broader a definition, according to the court, “effectively would result in the pre-emption of virtually everything an airline does. It seems clear to us that that is not what Congress intended.”47 This approach to ADA preemption has been followed by the Third Circuit.48
In contrast, the Fifth Circuit adopted a much broader definition of “service.”49 In Hodges v. Delta Airlines, Inc., a female passenger was injured when another passenger opened an overhead compartment and dislodged a case of rum. She brought a state law personal injury claim against Delta Airlines based on alleged negligent operation of the aircraft.50 In order to determine whether the plaintiff’s claim was preempted by the ADA, the Fifth Circuit adopted the following definition of “service”:
“Services” generally represent a bargained-for or anticipated provision of labor from one party to another . . . Elements of the air carrier service bargain include items such as ticketing, boarding procedures, provisions of food and drink, and baggage handling, in addition to the transportation itself. These matters are all appurtenant and necessarily included with the contract of carriage between the passenger or shipper and the airline. It is these [contractual] features of air transportation that we believe Congress intended to de-regulate as “services” and broadly to protect from state regulation.51
This definition of “service” is clearly far broader than the Ninth Circuit’s definition in Charas.
Still, the Fifth Circuit held the plaintiff’s claims were not preempted by the ADA. The court distinguished between claims related to the “operation and maintenance of the aircraft,” and claims related to airline “services,” holding that claims falling in the former category are not preempted by the ADA.52 With respect to the plaintiff’s claims, the court explained: “One uses the overhead luggage racks or the food and beverages provided in aircraft operation just as one uses the cigarette lighter or built-in cooler compartment in an automobile, and all these devices are available to support the general purpose of navigation.”53 The court rejected Delta’s arguments that the plaintiff’s injuries arose out of the “service” of baggage handling and boarding.54 Instead, the court found: “Whether certain luggage may be placed in overhead bins and whether the flight attendants properly monitor compliance with overhead rack regulations are matters that pertain to the safe operation of a flight.”55
Thus, while the Fifth Circuit adopted a broad definition of “service,” it added another layer of confusion with an almost untenable distinction between “service” and “operation and maintenance.” 56 Nevertheless, at least three other Circuit Courts of Appeals have adopted the Hodges court’s definition of “service.”57
SUPREME COURT DECLINES TO DEFINE “SERVICE”
In late 2000, the Supreme Court declined the opportunity to resolve the conflict concerning the appropriate definition of “service” within the meaning of the ADA’s preemption clause.58 Earlier that year, in Duncan v. Northwest Airlines, Inc., the Ninth Circuit held that a class-action lawsuit challenging Northwest’s smoking policy was not preempted by the ADA.59 Relying on its earlier narrow definition of “service” in Charas, the Ninth Circuit held that allowing smoking on Northwest flights does not constitute a “service” because such decision does not deal with “the frequency and scheduling of transportation, [or] the selection of markets to or from which transportation is provided.”60 Northwest appealed the Ninth Circuit’s decision, and the Supreme Court denied the petition for a writ of certiorari.61
Justice O’Connor, joined by Chief Justice Rehnquist and Justice Thomas, dissented to the Court’s denial of certiorari. In her dissent, she notes how the Courts of Appeals have “taken directly conflicting positions on this question of statutory interpretation.”62 Given these contradictory interpretations, the dissenting Justices would have granted certiorari in order to “provide needed certainty to airline companies.”63
APPLICATION OF THE ADA PREEMPTION CLAUSE
TO STATE-LAW INTENTIONAL TORT CLAIMS
Also in her dissent to the Court’s denial of certiorari in Duncan, Justice O’Connor suggests that while the underlying case involved a state law personal injury claim based on an airline’s smoking policy, “the legal principle at stake,” namely, the correct definition of “service” within the meaning of the ADA’s preemption clause, “has ramifications for a host of other tort actions against airline,” including “false imprisonment,” “intentional infliction of emotional distress,” and “defamation.”64 This section examines how courts have analyzed and should analyze these types of actions. Such cases often include state law discrimination claims.
DISCRIMINATION CLAIMS
The United States Supreme Court has not decided whether actions against airlines alleging state discrimination violations are preempted by the ADA.65 For lower courts examining this issue, the preemption outcome largely depends on the court’s definition of “service.”
A. Employment Discrimination Actions
Generally, discrimination suits brought by former airline employees bear “too tenuous, remote or peripheral” a relation to airline rates or services for preemption under the ADA, regardless of the court’s definition of “service.”66 Courts refusing to preempt such actions stress the purpose of the ADA, which “was concerned with the states’ attempt to regulate airline fares, routes and services, not employment practices.” 67
For example, in the racial discrimination context, courts generally agree that neither air safety nor market efficiency is appreciably diminished by the operation of state laws forbidding racial discrimination.68 As the Second Circuit explained in Abdu-Brisson: “Unlike the regulation of marketing practices at issue in Morales or the regulation of frequent flyer programs at issue in [Wolens], whether an airline discriminates on the bases of age (or race or sex) has little or nothing to do with competition or efficiency.”69
In other contexts, however, enforcement of state discrimination laws may appreciably “relate to” airline “services,” warranting preemption by the ADA. For instance, in 1996, the Michigan Court of Appeals held that state law weight discrimination claims brought by a baggage handler who was terminated for failure to comply with the airline’s height and weight standards were preempted by the ADA.70 Applying the Supreme Court’s broad interpretation of the phrase “related to” in Morales, the Michigan Court of Appeals held the plaintiff’s discrimination claims “related to” the “services of an air carrier,” and were preempted accordingly.71 In this case, as well as in other disability discrimination actions where the state law arguably “relates to” airline “service,” the scope attached to these statutory terms ultimately determines the preemption outcome.
B. Passenger Discrimination Actions
Cases addressing the scope of ADA preemption in discrimination actions brought by airline passengers provide a less coherent body of case law.72 Ultimately, whether or not a discrimination claim is preempted depends on the court’s definition of “service.”
Generally, courts have found such claims entirely unrelated to the performance of airline services, and therefore outside the scope of ADA preemption.73 For example, in Doricent v. American Airlines, Inc., a male passenger alleged that prior to his flight’s departure from Haiti, American Airlines employees referred to him using racial epithets, threatened to remove him from the plane, and physically assaulted him.74 The court held the plaintiff’s state law race discrimination claims did not “relate to” airline “services” under the Supreme Court’s precedent in Morales.75 While the airline employees’ behavior might “arguably constitute ‘services’—poor services, to be sure,” the court found this behavior had “nothing whatsoever to do with any legitimate or quasi-legitimate industry-wide practice of affording airline service.”76
Still, in other contexts, discrimination claims may have some legitimate bearing on an airline’s ability to render safe and efficient “service.”77 In such cases, even those involving alleged race discrimination, the plaintiff’s discrimination claims might be preempted by the ADA.
For instance, in Huggar v. Northwest Airlines, Inc., the United States District Court for the Northern District of Illinois held that an airline passenger’s race discrimination claims against Northwest were preempted by the ADA.78 The plaintiff, a 21-year-old black male was removed from a Northwest flight after removing another passenger’s luggage from an overhead bin and throwing it on the floor, threatening to physically assault the passenger, and claiming he could “buy” the passenger.79 The plaintiff’s ten-count claim against Northwest alleged that his ejection from the flight was racially motivated, and included a claim for a violation of the Illinois Human Rights Act.80
In determining whether the plaintiff’s state law race discrimination claims related to Northwest’s “service” of providing airline transportation, the court employed the following analysis: “the critical inquiry is [sic] the underlying nature of the actions taken, not the manner in which they were accomplished. Therefore, a court should not look to the subjective motivations of the employees because they are irrelevant to determining what constitutes ‘services’ within the meaning of the [ADA].”81 According to the majority, because the plaintiff’s actions clearly posed a safety threat to the other passengers, the airline’s decision to eject him from the flight “related to” the “service” of boarding and seating passengers, notwithstanding the airline employee’s subjective, allegedly discriminatory motivations.
As the above case highlights, the preemption outcome in passenger discrimination cases often depends entirely on whether a particular jurisdiction employs a broad or narrow definition of “service.” In order to find the plaintiff’s claims preempted by the ADA, the Huggar court first had to include “boarding and seating decisions” as cognizable “services” under the ADA’s preemption clause. In a similar case, the U.S. District Court for the District of Massachusetts held that a passenger’s lawsuit alleging he was discriminated against on account of his handicap in connection with boarding on a particular flight was preempted by the ADA.82 Necessary to the court’s decision was its reliance on the Fifth Circuit’s broad definition of “service,” which explicitly refers to “boarding.”
Conversely, jurisdictions employing the Ninth Circuit’s narrow definition of “service” will reach the opposite result under identical scenarios. For instance, the Ninth Circuit held a plaintiff’s disability discrimination claim against American Airlines based on the airline’s refusal to allow the plaintiff to board without a doctor’s certificate (she was in a wheelchair and had a heart problem) was not preempted by the ADA.83 The court’s analysis was probably over-simplistic; it simply held, “the term ‘service’ does not refer to alleged discrimination to passengers due to their disabilities.”84 Consequently, whether a passenger discrimination lawsuit is preempted by the ADA may ultimately depend on the court’s definition of “service.”
FALSE ARREST/ IMPRISONMENT
Several courts have addressed the issue of whether the ADA preempts false imprisonment and false arrest claims, reaching divergent conclusions.85 These cases can, however, be reconciled.
Where the courts have held a plaintiff’s claim for false arrest or false imprisonment is preempted by the ADA, such cases involve incidents where the airline refused or failed to provide a service relating to the transportation of a passenger.86 In these cases, “where the crux of the claim was the airline’s refusal to transport the passenger,” the courts have concluded that the claims related to the services of the airlines, and were therefore preempted by the ADA.87 This makes sense because all Circuit Courts of Appeals agree that “transportation” of passengers is a cognizable “service” under the ADA.
Conversely, where the basis of a false arrest or false imprisonment claim “is that the airline caused the passenger to be arrested by authorities without a proper factual basis,” courts have held that such claims are not “related to” an airline “service.”88 For example, if “an airline held a passenger without a safety or security justification, a claim based on such actions would not relate to any legitimate service and would not be preempted.”89
OTHER INTENTIONAL TORT CLAIMS
The Circuit Court of Appeals for the Seventh Circuit, in Travel All Over The World, Inc., examined whether a travel agency’s intentional tort claims against Saudi Arabian Airlines, arising out of the travel agency’s unsuccessful attempts to arrange flights to Saudi Arabia for its clients, were preempted by the ADA’s express provision.90 The court organized the plaintiff’s claims into two categories: (1) defamation and slander; and (2) “other” intentional tort claims.91
With respect to the first category, the Seventh Circuit acknowledged that courts have reached “divergent results” concerning whether claims for slander and defamation are preempted by the ADA.92 Here, the plaintiff based its defamation and slander claims on the airline employees’ making knowingly false verbal and written statements about the travel agency to the agency’s clients; specifically, that the agency “was not a reputable company, that [the agency] had not booked seats on Saudi for many of them, that [the agency] often lied to its clients about reserving seats for them, and that” the agency’s president would not be there to help them.93
Even after adopting the Fifth Circuit’s broad definition of “service,” the Seventh Circuit held the statements themselves were not airline “services” within the meaning of the ADA.94 Citing the Supreme Court’s opinion in Morales, the court explained: “It is difficult for us to envision how tort claims based on an airline’s knowingly false statements about a travel agency would have even a ‘tenuous, remote or peripheral’ economic effect on the rates, routes, or services that the airline offers.”95 Furthermore, although the statements refer to the travel agency’s services, the court held they certainly do not refer to the airline’s rates, routes, or services.96 Therefore, the plaintiff’s defamation and libel claims were not preempted by the ADA.
With respect to the second category of “other” intentional tort claims, including intentional infliction of emotional distress, tortious interference and fraud, the Seventh Circuit reached a different opinion. Only where these claims are based upon the same slanderous and defamatory comments that the court already found not preempted, could such claims withstand preemption scrutiny.97
Yet, the Seventh Circuit doubted this would hold true for the plaintiff in Travel All, as with most plaintiffs. Instead, the “other” intentional tort claims were most likely “based, at least in part, on [the airline’s] canceling the confirmed tickets of [the agency’s] clients and requiring these clients to purchase their tickets directly through [the airline].”98 To the extent that the plaintiff’s intentional tort claims rely on this “conduct” of the airline, rather than the airline employee’s allegedly slanderous and defamatory “comments,” the court held such claims “expressly refer to airline ‘services,’ which include ticketing as well as the transportation itself,” and are therefore preempted by the ADA.99 Again, this holding depends entirely on the court’s adoption of the Fifth Circuit’s broad “service” definition in Hodges, as opposed to the Ninth Circuit’s narrow definition of “service” in Charas.
CONCLUSION
The ADA’s preemption clause continues to cause confusion and divergent opinions throughout our nation’s courtrooms. The fundamental problem concerns the seemingly benign phrase “related to a price, route, or service” of an air carrier. The Supreme Court has done little to clear the fog surrounding this issue. Aside from expressly declining the opportunity to define “service,” the Court’s interpretation of the phrase “related to” has recently come into question.
In Morales, the Supreme Court interpreted the “related to” language of the ADA broadly, based largely on the “broad scope” previously applied to the similarly worded ERISA preemption clause.100 Yet, in recent years the Supreme Court has been narrowing the reach of ERISA’s preemption provisions.101 Indeed, the phrase “related to” in ERISA’s preemption clause “appears to be developing, to some degree, to mean whether state law actually ‘interferes’ with the purposes of the ERISA legislation.”102 Although the literal text of ERISA’s preemption clause is “clearly expansive,” like the ADA, the Supreme Court has held that for practical purposes the statute must be interpreted more narrowly, “lest its reach stop nowhere.”103 Analogously, it is unclear whether the ADA’s “related to” phrase should likewise receive a narrower interpretation to mean: whether state law actually interferes with the purpose of the ADA.
The larger question involving the ADA preemption clause concerns the proper definition of “service.” The Supreme Court has expressly declined to answer the question, despite the objections of three Justices.104 If the Court is not going to answer this question, Congress should. A clear definition of “service,” from either the Supreme Court or the Legislature, “would provide needed certainty to airline companies.”105
The question becomes: What definition of “service” should the Supreme Court or Congress adopt for the ADA’s preemption clause? This question must be answered in light of the fundamental purpose behind the underlying statute—courts should look to the objectives of the ADA as a guide to the scope of state law that should survive. The ADA is an economic deregulation statute designed to promote competitive rates, routes and services among the nation’s airlines.106 As such, only those actions directly impacting the airlines’ ability to provide competitive rates, enter new markets, and provide effective transportation to consumers should be preempted by the ADA.
The Ninth Circuit’s narrow definition of “service,” which encompasses the “prices, schedules, origins and destinations of the point-to-point transportation of passengers, cargo or mail,” best aligns with the purpose of the underlying ADA statute. Furthermore, this definition comports with the Supreme Court’s approach to express preemption clause analysis: “the familiar principle of expression unius est exclusio alterius.”107
Neither the language nor the history of the ADA suggests that Congress was attempting to displace all state law tort causes of action against the airlines; nor should the preemption clause act as a safe harbor against claims having only a tenuous impact on airline services.108 The vast majority of state law intentional tort claims cannot be said to frustrate the goal of economic deregulation in the airline industry. Furthermore, such claims do not affect a particular airline’s competitive posture any more so than a lawsuit affects any corporation in America. Accordingly, such actions should fall outside the scope of federal preemption under the ADA.
1 For a good discussion of the ADA’s legislative history, see Daniel H. Rosenthal, Legal Turbulence: The Court’s Misconstrual of the Airline Deregulation Act’s Preemption Clause and the Effect on Passengers’ Rights, 51 Duke L.J. 1857, 1869-1872 (2002).
2 Pub. L. No. 85-726, 72 Stat. 731 (later codified as amended at 49 U.S.C. §§ 40010-44310 (1994)).
3 Matt Andersson, The New Airline Code 62-64 (iUniverse, Inc. 2005).
4 49 U.S.C. § 1506 (current version at 49 U.S.C. § 40120 (c)).
5 Morales v. Trans World Airlines, Inc., 504 U.S. 374, 378 (1992) (citing 49 U.S.C.App. §§ 1302 (a)(4), 1302 (a)(9)).
6 49 U.S.C. app. §§ 1301-1557 (1988).
7 Matt Andersson, The New Airline Code 67 (iUniverse, Inc. 2005).
8 Morales, 504 U.S. at 378; See also Trinidad v. American Airlines, Inc., 932 F. Supp. 521 (S.D.N.Y. 1996) (stating that the purpose of ADA’s preemption clause was to prevent states from interfering with the development of an air transportation system driven to higher levels of innovation and efficiency by economic competition).
9 49 U.S.C. § 41713 (1997) (emphasis added).
10 49 U.S.C. § 40120 (c); Chrissafis, 940 F. Supp at 1296.
11 Hodges v. Delta Airlines, Inc., 44 F.3d 334, 337 (5th Cir. 1995); Morales, 504 U.S. at 425 (Stevens J., dissenting).
12 Morales, 504 U.S at 385.
13 See Matthew J. Jelly, Federal Preemption by the Airline Deregulation Act of 1978: How do State Tort Claims Fare?, 49 Cath. U. L. Rev. 873 (2000).
14 U.S. const. art. VI § 1, cl. 2.
15 See Susan D. Hall, Preemption Analysis After Geier v. American Honda Motor Co., 90 Ky. L.J. 251 (2002).
16 Shaw v. Delta Airlines, Inc., 463 U.S. 85, 95 (1983).
17 Rice v. Santa Fe Elevator Corp, 331 U.S. 218, 230 (1947).
18 Florida Lime & Avocado Growers, Inc. v. Paul, 373 U.S. 132, 142-43 (1963).
19 Branche v. Airtran Airways, Inc., 342 F.3d 1248, 1253 (11th Cir. 2003).
20 Id.; Cipollone v. Liggert Group, Inc. 505 U.S. 504, 517 (1992) (quoting Malone v. White Motor Corp., 435 U.S. 497, 505 (1978)); compare Grier v. American Honda Motor Co., Inc., 529 U.S. 861 (2000) (existence of express preemption provision does not mean that implied preemption cannot exist where the express preemption does not apply).
21 Morales v. Trans World Airlines, Inc., 504 U.S. 374 (1992).
22 Id. at 378.
23 Id. at 391.
24 Id. at 383.
25 29 U.S.C. § 1144 (a).
26 Morales, 504 U.S. at 384 (citing Metropolitan Life Ins. Co. v. Massachusetts, 471 U.S. 724, 739 (1985).
27 Id. (emphasis added).
28 Id. at 390.
29 See John T. Houchin, Harris v. American Airlines: Flying Through the Turbulence of Federal Preemption and the Airline Deregulation Act, 51 U. Miami L. Rev. 955, 966 (1997).
30 504 U.S. at 390 (quoting Shaw v. Delta Air Lines, Inc., 463 U.S. 85, 100 (1983) (emphasis added)).
31 Id.
32 American Airlines, Inc. v. Wolens, 513 U.S. 219 (1995).
33 Id. at 224.
34 Id. at 226.
35 Id at 228.
36 Id.
37 Id. (emphasis added).
38 Id. at 228 (emphasis added); see also Williams v. Midwest Airlines, Inc., 321 F. Supp. 2d 993, 996 (E.D.Wisc. 2004) (holding the plaintiffs’ breach of contract claim was not preempted because the airline’s agreement to transport plaintiffs to New York City “was a self-imposed undertaking, and plaintiffs’ attempt to enforce it does not involve the enforcement of any state law”).
39 Wolens, 513 U.S. at 232-33. The Court stated that this distinction makes sense in light of the ADA’s saving clause, which does not prevent states from “affording relief to a party who claims and proves that an airline dishonored a term that the airline itself stipulated.” Id.
40 Charas v. Trans World Airlines, Inc., 160 F.3d 1259 (9th Cir. 1998) (en banc).
41 Id. at 1261.
42 Id. at 1263 (citing Gee v. Southwest Airlines, Inc., 110 F.3d 1400, 1410 (9th Cir. 1997) (O’Scannlain, J., concurring).
43 Id. at 1265.
44 Id. at 1261.
45 Id. at 1265-66.
46 Charas, 160 F.3d at 1266.
47 Id.
48 See Taj Mahal Travel, Inc. v. Delta Airlines, Inc., 164 F.3d 186, 195 (3d Cir. 1998); Duncan, 531 U.S. 1058; compare Abdulla v. American Airlines, Inc., 181 F.3d 363, 367 (3d Cir. 1999) (holding that the entire aviation industry is field preempted).
49 Hodges v. Delta Airlines, Inc., 44 F.3d 334, 336 (5th Cir. 1995) (en banc).
50 Id. at 335.
51 Id. at 336 (citations omitted) (emphasis added).
52 Hodges, 44 F.3d at 336-37. The court found that claims relating to the “operation and maintenance of the aircraft” concern matters of “air navigation.” Id. at 338 (citing 49 U.S.C.App. § 1301(31) (1998)).
53 Id. (emphasis added)
54 Id. at 338-39.
55 Id. at 339.
56 The Firth Circuit admits that “the provinces of ‘services’ and ‘operation and maintenance of aircraft’ overlap somewhat conceptually; no strict dichotomy exists.” Id. at 339.
57 See Duncan, 531 U.S. 1058; Smith v. Comair, Inc., 134 F.3d 254, 259 (4th Cir. 1998); Travel All Over The World, Inc. v. Kingdom of Saudi Arabia, 73 F.3d 1423, 1433 (7th Cir. 1996); Branche v. Airtran Airways, Inc., 342 F.3d 1248, 1257 (11th Cir. 2003).
58 Northwest Airlines, Inc. v. Duncan, 531 U.S. 1058 (2000) (cert denied)
59 Duncan v. Northwest Airlines, Inc., 208 F.3d 1112 (9th Cir. 2000).
60 Id. at 1115 (quoting Charas, 160 f.3d at 1265-66).
61 Duncan, 531 U.S. 1058 (2000) (cert denied).
62 Id.
63 Id.
64 Id.
65 Lynette M. Bledsaw, The Express Preemption Provision of the Federal Aviation Administration Authorization Act Does Not Reach State Civil Rights Claims of Race Discrimination, American Bar Association (2000).
66 See Branche v. Airtran Airways, Inc., 342 F.3d 1248 (11th Cir. 2003) (former airline employee’s state court claim for retaliatory discharge was not preempted by the ADA); Wellons v. Northwest Airlines, Inc., 165 F.3d 493, 495 (6th Cir. 1999) (former airline employee’s race discrimination claim was not preempted); Parise v. Delta Airlines, Inc., 141 F.3d 1463, 1467-68 (11th Cir. 1998) (plaintiff’s age discrimination claim was not preempted by the ADA); Aloha Islandair Inc. v. Tseu, 128 F.3d 1301, 1303 (9th Cir. 1997) (holding Hawaii law barring physical disability discrimination was not preempted by the ADA); Abdu-Brisson v. Delta Airlines, Inc., 128 F.3d 77, 84 (2d Cir. 1997) (holding New York age discrimination action was not preempted by the ADA).
67 Id.; (citing Delta Air Lines, Inc. v. New York State Div. of Human Rights, 652 N.Y.S2d 253, 257 (1996);
68 Ryan L. Bangert, When Airlines Profile Based On Race: Are Claims Brought Against Airlines Under State Anti-Discrimination Laws Preempted By the Airline Deregulation Act?, 68 J. Air L. & Com. 791, 801 (2003); see Thomas v. United Parcel Service, 241 Mich. App. 171 (2000) (holding that former African-American employee’s race discrimination claim was not preempted by the ADA).
69 Abdu-Brisson, 128 F.3d at 84; Wellons, 165 F.3d at 496; Thomas, 241 Mich.App. at 181; see also Wellons v. Northwest Airlines, Inc., 165 F.3d 493, 495 (6th Cir. 1999) (“State law claims of racial discrimination—as opposed to claims of discrimination on the basis of physical characteristics that might have some bearing on the individual’s ability to render service safely and efficiently—are not preempted, in our view; they bear ‘too tenuous, remote, or peripheral’ a relation to airline rates or services.”); Thomas, 241 Mich.App. 171, 181 (2000) (“Plaintiffs’ race and gender are wholly unrelated to defendants’ services”).
70 Bledsaw, supra note 65; Fitzpatrick v. Simmons Airlines, Inc., 218 Mich. App. 689 (1996).
71 Fitzpatrick, 218 Mich. App. At 692. See also Belgard v. United Airlines, 857 P.2d 467, 471 (Colo.App.1992) (“any law or regulation that restricts an airline’s selection of employees, based upon their physical characteristics, must necessarily have a connection with and reference to, and therefore must be one ‘relating to,’ the services to be rendered by the airline”)
72 Bangert, supra note 22 at 803.
73 Bledsaw, supra note 65 at 5.
74 Doricent v. American Airlines, Inc., 1993 WL 437670 (D.Mass 1993).
75 Id.
76 Id. at *5.
77 Bledsaw, supra note 65 at 5.
78 Huggar v. Northwest Airlines, Inc., 1999 WL 59841 (N.D. Ill. 1999).
79 Id. at *1; see also Bangert, supra note 22 at 805-06.
80 Id.
81 Id. (citations omitted).
82 DeTerra v. America West Airlines, Inc., 226 F. Supp. 2d 274 (D.Mass. 2002).
83 Newman v. American Airlines, Inc., 176 F.3d 1128, 1131 (9th Cir. 1999).
84 Id. at 1131;
85 Chrissafis v. Continental Airlines, Inc., 940 F. Supp. 1292, 1298 (N.D. Ill. 1996).
86 Id.; see Williams v. Express Airlines I Inc.,, 825 F. Supp. 831, 832-33 (W.D. Tenn. 1993) (holding that plaintiff’s claim for false imprisonment after he was denied admittance to a flight and then strapped to an immobile chair in the airline waiting area was preempted by the ADA); Lawal v. British Airways, PLC, 812 F. Supp. 713, 715 (S.D. Tex. 1992) (holding that plaintiff’s false arrest and false imprisonment claims where airline personnel detained the plaintiff and forced him to purchase a new ticket were preempted); Galbut v. American Airlines, Inc., 27 F. Supp. 2d 146 (E.D. N.Y. 1997) (holding that plaintiff’s false arrest and false imprisonment claims arising out of airline’s refusal to permit plaintiff to upgrade using stickers the airline had falsely alleged were stolen and the demand for payment for the upgrade were preempted by the ADA); Smith v. Comair, Inc., 134 F.3d 254 (4th Cir. 1998) (passenger’s claim for false imprisonment based on the airline’s refusal to permit him to board due to the airline’s failure to ask for photo identification at the point of original departure was preempted).
87 Chrissafis, 940 F. Supp. at 1298.
88 Id.; see Diaz Aguasviva v. Iberia Lineas Aereas 902 F. Supp. 314, 316 (D. Puerto Rico 1995) (permitting a passenger to pursue a claim that airline personnel falsely identified the passenger as an illegal alien, causing police and customs agents to arrest and detain her); Curley v. American Airlines, Inc., 846 F. Supp. 280, 281-82 (S.D.N.Y. 1994) (holding that plaintiffs claim that the flight crew had falsely arrested the passenger for smoking marijuana, causing him to be strip-searched, was not preempted); Bayne v. Adventure Tours USA, Inc., 841 F. Supp. 206, 207 (N.D.Tex 1994) (refusing to preempt a passenger’s claim that an airline pilot made misrepresentations to police, causing the plaintiff to be taken into custody, detained, and subjected to a luggage search); Rombom v. United Airlines, Inc., 867 F. Supp. 214, 224 (S.D.N.Y. 1994) (finding that false imprisonment claims stemming from the airline’s decision to have plaintiff arrested, allegedly motivated by spite, were not preempted).
89 Smith v. Comair, Inc., 134 F.3d 254, 259 (4th Cir. 1998); Chrissafis v. Continental Airlines, Inc., 940 F. Supp. 1292, 1289-99 (N.D. Ill. 1996)
90 Travel All Over The World, Inc., v. Kingdom of Saudi Arabia, 73 F.3d 1423 (7th Cir. 1996).
91 Id.; see also Chrissafis , 940 F. Supp. 1292 (recognizing this distinction). In addition to defamation and slander, the “other” intentional tort claims included tortious interference with a business relationship, fraud, intentional infliction of emotional distress, and tortuous interference with a business relationship.
92 Travel All Over The World, Inc., 73 F.3d. at 1433; compare Fenn v. American Airlines, Inc., 839 F. Supp. 1218, 1223 (S.D. Miss. 1993) (finding claims for slander unrelated to airline “services”) with Chukwu v. Board of Directors of British Airways, 889 F. Supp. 12, 14 (D.Mass. 1995) (finding specific claims for slander related to airline “services”) and Pearson v. Lake Forest Country Day Sch., 262 Ill.App.3d 228 (1994) (same).
93 Id.
94 Id. at 1433.
95 Id. citing Morales, 504 U.S. at 383-85.
96 Id. at 1433.
97 Travel All Over The World, Inc., 73 F.3d at 1434..
98 Id.
99 Id. (citing Hodges, 44 F.3d at 336); see also DeTerra, 226 F. Supp. 2d at 277 (finding handicapped passenger’s claims for intentional and negligent infliction of emotional distress in connection with his denial of boarding on a particular flight was preempted); Chukwu v. Board of Directors British Airways, 889 F. Supp. 12, 13 (D.Mass. 1995) (concluding that plaintiff’s claim for intentional infliction of emotional distress based on the allegation that he had been improperly denied boarding on a flight was preempted by the ADA).
100 Morales, 504 U.S. at 384.
101 See Abdu-Brisson, 128 F.3d 77, 82 (2d Cir. 1997); DeBuono v. NYSA-ILA Medical and Clinical Serv., 520 U.S. 806, 816 (1997).
102 Abdu-Brisson, 128 F.3d at 82 (emphasis added); citing New York State Conf. of Blue Cross & Blue Shield Plans v. Travelers Ins. Co., 514 U.S. 645, 655 (1995); Boggs v. Boggs, 520 U.S. 833 (1997) (“We can begin, and in this case end, the analysis by simply asking if state law conflicts with the provisions of ERISA or operates to frustrate its objects).
103 Travelers Ins. Co., at 655 (Too expansive an interpretation of “relate to,” according to the Court, “would be to read Congress’s words of limitation as mere sham, and to read the presumption against pre-emption out of the law whenever Congress speaks to the matter with generality. That said, we have to recognize that our prior attempt to construe the phrase ‘relate to’ does not give us much help drawing the line here”).
104 See Duncan, 531 U.S. 1058 (cert denied).
105 Id.
106 See Morales, 504 U.S. at 378.
107 See Cipollone, 505 U.S. at 517 (quoting Malone, 435 U.S. at 505).
108 Smith v. America West Airlines, Inc., 44 F.3d 344, 346-47 (5th Cir. 1995).
Mathew A. Passen
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