Posts tagged "lawsuit"

Dog Bite Laws in California

In California the owner of any dog is liable for the damages suffered by any person who is bitten by the dog while in a public place, or lawfully in a private place. The owner of the dog is liable even if the dog bites on the owner’s property. It does not matter if the owner new the dog was vicious or not. A person is considered to be lawfully upon the private property when he is on the property in the performance of any duty imposed upon him by the laws of the State of California or by the laws or postal regulations of the United States, and also when the person on the private property on invitation from the property owner, the invitation could be expressed or implied.

Someone breaking into a private home and bitten by a dog would not have a cause of action. If your dog rushes out and bites someone knocking on your door and bites someone that is there for the purpose of converting you to their religion or to sell you a subscription to a nonexistent magazine, then they would have a cause of action, because of implied inviation. If you happen to have a fence that is locked or just closed and with a sign advising that no one is invited implied or expressly then you are unlikely to be liable, but exceptions to this rule also apply.

Under the California law if you are bitten where you have a right to be, you automatically win on liability, and it is only a matter of proving damages. If you are bitten after ignoring a sign that says noone no invitation is made to enter my property expressly or impliedly then a different standard applies. The standard is one of negligence, was the owner’s conduct reasonable. Training an attack dog to attack any human being upon entering the property is probably not reasonable. There is also the mail man exception, the mail man has to drop off the owner’s mail and if bitten would have a lawsuit against the dog owner, regardless of whether there is a sign or not.

The best way to avoid liability if you own a dog might be to put up a sign that says, one that says there is no implied invitation to this property, keep out, all others in consideration for entering this property you assume the risk of getting bitten by a dog. It would not eliminate the risk of liability for a dog biting a human being, especially if it is at night and there is no light on the sign, but otherwise if the sign can be read, it would help minimize or eliminate the liability.

If you happen to be the victim, it is unlikely that you had fair warning and that you were bitten while breaking into someone’s home. A dog bite or dog attack is a special kind of personal injury claim. It is a type of claim that is not evaluated by a computer. The type of damages that are pursued are often for pain, suffering, emotional distress, disfigurement, loss or earnings, reasonable and necessary medical expenses, and future medical treatment. If the dog attack while the victim was doing something illegal, it is unlikely that a lawsuit can be maintained.

A person cannot bring a lawsuit when a bite occurs if the dog is a military dog or police dog and the person bitten was annoying, harassing, or provoking the dog and the dog was defending itself. A person cannot bring a lawsuit against a military dog or police dog if the dog was assisting an employee of the agency in apprehension or holding of a suspect where the employee has reasonable suspicion of the suspect’s involvement in criminal activity. There is no real clear line as to what reasonable suspicion means. No lawsuits are permitted when the military or dog is assisting an employee of the agency in investigation of a crime or possible crime, in the execution of a warrant, and in the defense of a peace officer or another person.

If the person bitten by a military or police dog is not a party to, nor a participant in, nor suspected to be a party to or a participant in, the act or acts that prompted the use of the dog in the military or police work, is allowed to bring a lawsuit. It is not unusual for passerbys or bystanders to get bitten by a poorly trained dog.

For the police and military dog exception to apply the agency must also have adopted a written policy on the necessary and appropriate use of a dog for the type of work the dog is to do.

If a dog bites a human being, the owner of the dog is required to take steps to remove the danger of a bite from the same dog on another person.

If the dog has bitten twice, any person, the DA, or city attorney can bring an action in court t6 determine if the confinement and treatment of the dog is sufficient to keep it out of danger to other persons. The court has the power, after hearing, to order that remove the dog fro the are where it is confined, or to destroy it if necessary.

A different standard applies when the dog has been trained to fight. If the dog has been trained to fight only one bite is required for any person, the district attorney, or city attorney to bring an action in court to determine if the dog’s confinement is sufficient to keep the dog from biting another human being. The court after hearing, has the power to prevent the reoccurence of a bite, by removal of the dog from the area or destruction if necessary.

In California there are no free bites. If the dog bites a human being, there is liability for personal injury, unless there some sort of exception such as a police dog or military dog exception.

Arnold Hernandez
http://www.articlesbase.com/pets-articles/dog-bite-laws-in-california-101437.html

Dr. Shirley Moore (CA): Court Corruption, Part 1

Family Preservation Rally 2007, Lincoln Memorial, 8/18/07; Dr. Moore, Nat’l Dir., Legislative Affairs, AFRA; Pres., Praying Hands for Justice, speaks about how to clean up court corruption from her own experience in helping to open up 30,000 foster care cases in L.A. County. DrshirleyM@aol.com, http://www.drshirleymoore.com/index.html
Radio Programs:

http://www.blogtalkradio.com/DrShirley

http://www.blogtalkradio.com/Justice4us

See Attorney Richard I. Fine’s website: http://www.disclosurewatch.us
Disclosure Watch Townhall Meeting:

Sign Petition: http://www.thepetitionsite.com/1/requesting-for-all-united-states-cases-to-be-revisited#signatures

Duration : 0:9:36

Read more…

Cma-cgm: Jacques Saade’s Involvement in “damietta Gate”

Free translation of the article published in the egyptian daily « Massaeyat » of October 17th 2006

Jacques Saade’s involvement in “Damietta Gate”

New developments in the case of the Damietta company next November

The General Prosecutor launches new investigations in relation to public funds and other irregularities perpetrated after the arrest of Ali Massaad

The appearance of the accused and the lifting of the sequestrations are the main issues of this case

This case locally known as the “great corruption case of the Damietta Containers” and internationally named the “Damietta Gate” has shaken the Egyptian, Arab and international public opinion.

From the first audience, three of the six accused confessed, the third, the fifth and the sixth and acknowledged having been involved in the briberies paid to Ali Massaad, whereas the latter denied at the beginning the whole matter.

The six accused, Ali Massaad, chairman of the board of directors of the Damietta Container Company, Jihad Anis Dagher, employee of Leader Company, Nabil Elie Bassil, CMA-CGM regional Finance and administrative director, Mostapha Mohamad Khalil Abdel Monhem, Director of the Damietta subsidiary, Jamal Abdel Razek Abdel Sadek and Ahmad Mahmoud Ahmad Yacoub have been referred to the Penal Court by the General Prosecutor (financial section), and the second hearing is set for November 9th for a contradictory debate and confrontation with the prosecution’s witnesses who will appear before the court for corruption and misappropriation of public funds.

The most surprising aspect of this case it seems is that Ali Massaad’s successor as head of the Damietta Container Company is following the same methods as his predecessor, a matter which compelled the General Prosecutor to launch a second investigation pertaining to the period following Ali Massaad’s management of the company. This investigation has been postponed following the juridical holidays and the promotion of prosecutor Wadih Hanna Nached.

Ali Massaad, known as the “Bey”, is now in prison.

This case is about corruption, account manipulations, financial fraud and a plot between the Damietta Container Company and French company CMA-CGM presided by Lebanese national Jacques Saade whose corporate headquarters are in Marseille. The file that is being dealt with by the Court of State Financial Security in Egypt pertains to the misappropriation of funds that could reach up to 20 million dollars.

The main accused is being held in temporary custody while awaiting the outcome of this case.

This case is of major interest in its Egyptian, Lebanese and French ramifications.

The Egyptian media has released important pieces of information revealing that this is not an isolated corruption matter in the shipping sector in Egypt. The former General Prosecutor Maher Abdel Wahed has already ordered the chairman of the board of directors of the Damietta Container Company, Ali Massaad, to be placed in custody and his personal assets seized until the end of the investigation; the latter decision has been notified to the Central Bank of Egypt, the Finance Directorate and the land registry.

The General Prosecutor opened an investigation following a declaration presented by the president of the Central Accounting Agency regarding the statements of accounts pertaining to the company owned by the holding company for land and shipping transport presided by the General Mohammad Youssof already indicted in the case of the seizure of the “Salem 2” vessel in the port of Alexandria. The president of the Court of Appeal of the district of South Cairo, Adel Joumaa had set the next hearing to last May 29th in order to take a decision as to the verdict of the General Prosecutor.

The investigations have revealed a plot between engineer Ali Massaad and the managers of the foreign shipping company regarding the signature of an agreement according to which the foreigh company could benefit from exceptional rebates to the detriment of the Damietta Public Company that could reach up to 5,5 million dollars.

This scandal is worrying Egyptian public opinion as well as the political scene, as it happens to occur after other scandals such as the one related to the Directorate of Transport, the Bank of Cairo and the robbery of steal and other metals.

The investigations have proven the existence of a plot between the first accused Ali Massaad Saad and the President of the foreign shipping company, which resulted in the disappearance of 6 million dollars from the Egyptian treasury. It has been established, following the house search, that the accused regularly received briberies from France.

In a surprising rebounce, the investigation revealed that the managers of the international shipping company based in Marseille (France) reimbursed the amount of 3,1 million dollars by bankers cheque to the Damietta Company following a compromise aimed at smothering the case, after that the General Prosecutor started a legal action against this company and seized the assets of Ali Massaad. This payment did not put an end to the legal actions but led to the discovery of another aspect of this case namely the direct involvement of the French company in corrupting Egyptian officials.

Despite CMA-CGM’s denial of any involvement in this corruption case declaring that an internal investigation is underway in coordination with the Egyptian authorities, the Sunday Express newspaper revealed that CMA-CGM presided by Jacques Saade, paid 10,000 dollars per month to Massaad, and has reimbursed as reparation 3.1 million dollars to the Egyptian port of Damietta.

In a statement made by Jacques Saade to the same newspaper, he mentioned that these people were paid by the CMA’s Egyptian subsidiary, that no transfers were made by the French head office and that his company was investigating in coordination with the Egyptian authorities. Various managers were heard including the accountancy manager.

According to the Sunday Express, this is an extremely serious situation and other countries, including the United States, are being worried. It seems that political pressures have been exerted in order to prevent CMA-CGM from acquiring from the English company P&O its shares in the American port of Dubai for security reasons. The American authorities are undertaking an investigation regarding this matter.

Other pieces of information collected in parallel to the secret investigation indicated that many points in this case were still not clear. The most important element that has been discovered until now is the false contract -which is the main aspect of the investigation- signed by Farid Salem, CMA-CGM general manager and brother-in-law of Jacques Saade.

It has been revealed that Abdel Razek is the financial manager of CMA-CGM in Egypt, presided by Jacques Saade, as indicated by the social security registers.

All the evidence indicates that the financial offenses have been perpetrated by the chairman of the Damietta Company, in addition to the irregularities within the contract signed with the shipping line in Marseille.

In an Al-Ahram article of May 26th 2006, it seems, according to the investigations undertaken by the financial control services [official body], the principal accused perceived important amounts on a regular basis in exchange for those irregularities. The former General Prosecutor Wadih Hanna Nached issued search-warrants in the offices of the said shipping company (CMA-CGM) in Alexandria, which resulted in the seizure of numerous pieces of evidence confirming the transfer of important amounts from the accounts of the latter company in favor of the accused.

According to the “magazine Rose El Youssof” that published the result of a long investigation on the subject, the chairman of the Damietta Company is the owner of two palaces in the city of Damietta on the river Nile as well as a dozen estates and three villas in the touristic village of Yasmina in Port Said, in addition to five hectares of agricultural land in the latter city, 20 million Egyptian pounds deposited in bank accounts in his name, his wife’s and children’s and a number of bank accounts abroad which inventory is not yet known.

It was mentioned in the article that Ali Massaad had a nickname, “the Bey”, to the order of whom checks were drawn up.

The investigations revealed that the number of containers CMA-CGM sent in transit through the port of Damietta, did not exceed 70,000 teus for the last 12 months allowing the French company to benefit from rebates of the amount of 5,5 million dollars. This led them to illegally modify the contract with the Damietta Company by paying briberies in addition to the monthly remuneration of Ali Massaad.

Rose El Youssof added that Ali Massaad pretended that he made his fortune in Saudi Arabia, where he worked for 12 years, and in Bahrein, where he worked 5 years; but was not able to keep the evidence that would clear him.

A surprising aspect is that he appeared before the court, which ordered the seizure of his assets and his wife’s, wearing bad quality clothes, in an attempt to conceal his wealth. The most astonishing is that the law firm handling his defense is one of the major firms specialized in shipping matters in Egypt.

The investigation is moving forward with the hope to shed light on other thorny aspects of this case. There is a strong probability that the General Prosecutor would prosecute Jacques Saade, chairman of CMA-CGM; one more element that adds up to the conflict as to the ownership of this company and increases the legal stranglehold around Jacques Saade.

Damietta “Gate” to date is the last link in a series of legal proceedings facing Jacques Saade.

If this case is taking an official aspect in Egypt given that it involves a number of irregularities, corruptions and misappropriation of public funds, other legal proceedings have been launched in many countries in which the conflict between the brothers Jacques and Johnny Saade is raging around the ownership of CMA-CGM, the first shipping company in France and the third worldwide.

Six years after the signature of a contract on September 16th 2006 between the two parties aimed at ending the conflict but which deprived Johnny Saade of his legitimate rights due to a deceitful set-up, new facts could reveal unexpected developments in the coming months very probably in favor of the latter.

The internet site www.mistralholding.com owned by Johnny Saade’s company Mistral Holding s.a.l., contains a huge amount of documents, compromising reports and legal evidence, that explains in detail the conflict between the two brothers which is being reported at the top of the news in the Lebanese, arab and international press. Among these documents a report issued by the financial expert Antoine Gaudino explaining the circumstances that led to the said conflict.

One can read in the report that the conflict between the two Saade brothers as the major shareholders of the CMA-CGM Group is mentioned by the media as a family feud due to Jacques Saade’s statements, but Johnny, who owns 48.44% of CMA’s shares accuses his brother of hiding information in general and more specifically regarding transactions initiated by Jacques Saade in France and elsewhere.

The conflict actually starts by the lack of transparency during the acquisition of CGM by CMA, and Jacques Saade’s attempt at controlling the group for his sole personal benefit.

The preliminary investigations undertaken by Gaudino on August 29th 1997 at the request of Mistral holding, revealed that the management system established by Jacques Saade on behalf of CMA made Johnny Saade fearful, as major shareholder, of the company’s future.

With further investigations, various fiscal irregularities and others have been discovered, and are part of the conflict between the brothers.

The main historical stages of this conflict are the following:

The Limited company CMA (Compagnie Maritime d’Affretement) was created by brothers Johnny and Jacques Saade on September 8th 1986 and registered at the RCS of Marseille on April 8th 1987 under number 340 353 911.

The initial capital was FFr.250,000. It was to be increased following various share capital increases in 1986, 1987 and 1993 as well as on May 26th 1994 further to an extraordinary general assembly to reach FFr. 60,000,000 divided in 600,000 shares with a nominal value of FFr.100.

At the latter date and according to the shareholders’ registry, the shares were distributed between three Lebanese companies: Merit s.a.l., owned by Jacques Saade, 48.41%; Mistral Holding s.a.l., owned by Johnny Saade, 48.41%.

The six shares attributed to the “Jacques Saade Family” are held by Mr. Jacques Saade, his spouse Mrs Nayla Salem, his daughter Tania, his son Rodolphe, his brother-in-law Mr. Farid Salem and Mr.Tristan Vieljeux.

The three Lebanese companies are all registered at the Beirut registrar of Companies and domiciled in the same city and the same address.The company Rodolphe Saade & Co is owned by Jacques Saade and Johnny Saade, 50% of the shares each, respectively through Merit s.a.l. and Mistral Holding s.a.l.

CGM s.a. (Compagnie Generale maritime), with a capital of FFr. 1,275,948,600 and registered at the RCS of Nanterre under number 562 024 422, has been transferred by the French government to the private sector by ministerial decision on October 21st 1996.

The capital of CGM is distributed as follows: 90% of the shares came to be held by CMA, 6% personally by Jacques Saade and 4% between three other shareholders.

CMA got 96% of the CGM shares whereas the 4% remaining were held by three other shareholders; and Jacques Saade’s stake reached 51% whereas Johnny’s, through Mistral holding, did not reach 49.9%.

The first findings revealed a certain number of irregularities, the most important of which related to general assembly meetings.

An extraordinary general assembly was held at CMA head offices on December 12th 1996 without letting Mistral Holding s.a.l. have the opportunity to participate. This assembly was aimed at granting the board of directors the right to increase the share capital, in one or many times. This authorization to the board of directors was valid for a period of five years and aimed at increasing CMA’s capital from FFr. 60,000,000 to a maximum of FFr. 135,000,000.

The report added that until December 12th 1996 CMA’s management has always convened Mistral holding s.a.l. by rapid courier (DHL) and simultaneously by fax, given postage delays to Lebanon. In an unusual manner, the convening to the extraordinary general assembly meeting of December 12th 1996 was sent to Mistral Holding s.a.l. on November 26th 1996 by recommended letter with acknowledgement of receipt.

Everything was done in order to prevent Johnny Saade to be informed in due time and therefore to participate to the main decisions to be taken including the share capital increase.

It is within the above-mentionned context that Johnny Saade seized the Tribunal of Commerce of Marseille who designated on December 23rd 1996 a judicial “huissier’ in order to get the documents pertaining to general assemblies and board of directors held by CMA.

Following this judicial decision, Mr Johnny Saade was able to raise various irregularities. Four Board of Directors meetings were held on June 7th, September 20th and November 14th & 15th 1996 without Mistral Holding s.a.l. being ever convened whereas the minutes of meetings stipulated that Mistral Holding s.a.l. was “absent and excused”.

A general assembly was held on March 27th 1997 in cancellation of the share capital increase decided by the general assembly of December 12th 1996.

This did not however erase the irregularities due to the share transfers and the acquired majority to the benefit of Jacques Saade which jumped from 48,41% to 50,001%.

Irregularities were noticed regarding the presentation of balance sheets. It appears from CMA’s balance sheets in the offer for the acquisition of the CGM of October 3rd 1996, that CMA was in good financial health, that it increased its shareholders’ equity funds, reaching FFr. 700 million and the CGM acquisition project would allow the financial rehabilitation of the latter no later than 1999.

The findings made on certain accounting entries called in question the validity of the level of CMA’s shareholders’ equity which were lower than the reality. These shareholders’ equity funds were much lower than the FFr. 200 millions and CGM’s takeover was a juicy business deal that Jacques Saade wanted to keep for himself to the detriment of his brother Johnny.

This report mentioned, backed by the necessary documents and figures, that the filed balance sheets were false and did not reflect the truth about CMA’s accounts, a matter that was to jeopardize the future of the company and the interests of Johnny Saade, its main shareholder.

This report mentionned that Jacques Saade made his brother Johnny become a minority shareholder through successive steps and by premeditation in order to prepare the acquisition of CGM to his sole personal benefit; the report also summarized the various attempts of Jacques Saade to escape legal proceedings which were accumulating every day.

Of importance in this conflict is the re-opening of a financial investigation by the Paris Tribunal regarding the accounting irregularities and fiscal fraud perpetrated by Jacques Saade in managing CMA-CGM.

Other information indicate that Egyptian courts of law are entangled in an important corruption file involving the Port of Damietta since the 90s and are attempting to determine the scale of corruption involving the representatives of the French shipping line on behalf of their managers in France. While awaiting new developments, the director of the Port of Damietta has in the meantime been arrested.

On another level and following the penal lawsuit filed by Mistral Holding, Paris Tribunals (France) have launched legal investigation regarding the CMA-CGM balances sheets that are allegedly false. The investigation has been entrusted to two prominent magistrates in France. The aim of this investigation is to shed light on the possible fiscal fraud and concealment of the real profits, a matter that goes back to the signature of the contract that has put an end to the conflict between brothers Jacques and Johnny Saade.

Finally, we can add to this multi-faceted judicial file that is surrounding Jacques Saade, a matter that is worrying investigators near the General Prosecutor of Lattakia in Syria. It involves the falsification of official documents, the use of false documents and usurpation of legal capacity, involving Choucri el Khoury that seems to have acted on behalf of Jacques Saade.

andrew barns
http://www.articlesbase.com/business-articles/cmacgm-jacques-saades-involvement-in-damietta-gate-80435.html

Cma-cgm Case : the Series of Lawsuits Continues in Syria, Lebanon, Egypt, France, England and the United States

Damietta company case : The series of lawsuits continues in Syria, Lebanon, Egypt, France, England and the United States

Free translation of the article of the syrian weekly « Al Boursat wal Aswak » of 1 8 October regarding the CMA-CGM case

The series of lawsuits continues in Syria, Lebanon, Egypt, France, England and the United States .
Jacques Saadé besieged by the judiciary.
Every day reveals a new case on the arab and International level in the long story of Syrian national Jacques Saade, chairman of the board of directors of the French company CMA-CGM.

The lawsuit of his brother Johnny R.Saade is still under deliberation near the tribunal of cassation regarding the production near a notary public by Jacques Saade and Lebanese lawyer Choucri El Khoury of a false power of attorney related to the partition of his sole benefit and to the detriment of his brother, of a building situated in Lattakia.
This partition was forbidden by the magistrates.
This case became penal near the Investigating Judge in Lattakia and the General Prosecutor issued an accusation against Jacques Saade and Choucri El Khoury for forgery offence and the use of official documents. The case is under course near the Higher Council of the court of cassation.

A far as Egypt is concerned, the Egyptian and Lebanese press as well as some television networks have reported that a major contract forgery case has broken out between the French company CMA-CGM signed by Farid Salem, a close colleague of Jacques Saade, and the Damiette Container Company, a public-sector corporation, to the benefit of Jacques Saade and Farid Salem who profited from important amounts to the detriment of the Egyptian treasury; in addition ot their committing briberies.
Whereas CMA-CGM was forced to return to the Egyptian state the sum of 3 million Egyptian pounds in exchange for allowing Jacques Saade and Farid Salem from leaving the Egyptian territory and lifting of a seizure decision against their assets wherever they may be.

The payment of this amount falls within a compromise aimed at removing the legal proceedings initiated by the General Prosecutor against them and focus the responsibility solely on VMA-CGM employees, who are not the personal beneficiaries of this corruption case.

However the company Mistral (Holding) s.a.l., CMA-CGM shareholder, has recourse to the Egyptian judiciary as a civil party with the aim of denouncing the people involved in this corruption case and benefiting from Egyptian public funds. It is to be noted that such crimes are subject to the imprisonment and penal servitude for life.

This case had consequences outside Egypt. The ministries of Justice and foreign affairs of the United States and Great Britain undertook investigations suspecting that this case went beyond corruption and the diversion of public funds. The arab and foreign press reported those facts, among which: The Sunday Express, Lloyds, the Wafd (Egyptian), AL Akhbar (Egyptian), Al Joumhouryah (Egyptian), Al Ihtidal (Syrian), Al Kifah al Arabi (Lebanes), Al Balad (Lebanese) as well as others…

Jacques Saade was deeply surprised of Mistral holding’s intervention at the court session of the penal tribunal on September 3rd 2006 which was adjourned to November 11th 2006 while at the same time keeping in custody the director of the Damiette company, engineer Ali Massaad and maintaining the warrant for the arrest against the regional manager of CMA-CGM, Nabil Bassil, fugitive, who is suspected of hiding in Jacques Saade’s offices in Beirut. Despite Jacques Saade’s attempts at denying any involvement following the clear confessions of the accused.

It is to be noted that the Egyptian judiciary, the General Prosecutor for financial matters is waiting for the return of Jacques Saade in order to arrest him.

It is expected that further developments will occur in the coming days especially that other similar corruption cases have been dealt with near the public funds general prosecutor in Egypt, establishing a new corruption case involving the Syrian national Jacques Saade acting on behalf of the French company CMA-CGM in Egyptian ports.
A number of lawyers of Jacques Saade are repeatedly coming to Egypt in order to find an unofficial compromise and put pressure on the Egyptian press in order for it to quiet down, and lead to a discreet closing of the file.

The Alam al Mashaeer newspaper (Egyptian), close to the investigation, reported that it was unlikely that Jacques Saade could be innocent of the crime of corruption given that the amount of the bribes is substantial and could not be undertaken by simple employees, especially that Jacques Saade personally benefited from this deal. It is his close relative Farid Salem who signed,on behalf of CMA-VGM, the false contract with the Damiette company.

As far as France is concerned, it is interesting to note that lawsuits are starting to encircle Jacques Saade as is reported by the French press. A new investigation has been initiated by the General Prosecutor in France and two investigative judges have been designed I the matter following a penal petition filed by Mistral against Jacques Saade for producing false accounts and under-estimated account projections in collusion with the company’s auditors.

The above fits with the illegal transfers to the benefit of the personal accounts of Jacques Saade through his range of personal companies such as CMA International and Container Management advisors, which have been under liquidation with the aim of concealing those offences; however legal proceedings have put a halt to the liquidation process of those companies.

Le Journal du Dimanche and La Lettre du Sud have written in this respect and added that legal proceedings against Jacques Saade are intensifying every day and the noose is tightening around him.

Businessurgent
http://www.articlesbase.com/business-articles/cmacgm-case-the-series-of-lawsuits-continues-in-syria-lebanon-egypt-france-england-and-the-united-states-75432.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
http://www.articlesbase.com/personal-injury-articles/preemption-of-state-law-intentional-tort-actions-under-the-airline-deregulation-act-of-1978-706745.html