Appeal from the United States District Courtfor the Northern District of CaliforniaThelton E. Henderson, District Judge, PresidingMILDRED JACOBY,Plaintiff-Appellant,v.TRANS WORLD AIRLINES, INC., No. 96-15543Defendant-Appellee, D.C. No.and CV-94-00963-HG/FIYJOHN DOE, 1-10; JANE DOE, OPINION1-10; DOE CORPORATIONS, 1-10;DOE PARTNERS, 1-10; DOEENTITIES, 1-10,Defendants.Appeal from the United States District Courtfor the District of HawaiiHelen Gillmor, District Judge, PresidingBERNICE GULLEY,Plaintiff-Appellant, No. 96-15791v. D.C. No.AMERICAN AIRLINES; AMR CV-93-04044-DLJCORPORATION; AMERICAN EAGLEAIRLINES,Defendants-Appellees.Appeal from the United States District Courtfor the Northern District of CaliforniaD. Lowell Jensen, District Judge, PresidingELIZABETH NEWMAN,Plaintiff-Appellant,v. No. 97-55115AMERICAN AIRLINES, INC., D.C. No.Defendant-Appellee, CV-95-02530-NAJandDOES 1THROUGH 50, inclusive,Defendants.Appeal from the United States District Courtfor the Southern District of CaliforniaNapoleon A. Jones, District Judge, PresidingROBERT A. BEVERAGE,Plaintiff-Appellant, No. 97-15158v. D.C. No. CV-96-03253-DLJCONTINENTAL AIRLINES, INC.,Defendant-Appellee.Appeal from the United States District Courtfor the Northern District of CaliforniaD. Lowell Jensen, District Judge, PresidingArgued and SubmittedJuly 23, 1998--San Francisco, CaliforniaFiled November 30, 1998Before: Procter Hug, Jr., Chief Judge, James R. Browning,Betty Binns Fletcher, Melvin Brunetti, David R. Thompson,Ferdinand F. Fernandez, Pamela Ann Rymer,Thomas G. Nelson, Andrew J. Kleinfeld,A. Wallace Tashima, and Barry G. Silverman,Circuit Judges.Opinion by Judge Silverman
_____________________________COUNSEL Gerald A. Clausen and Edward M. Digardi, San Francisco,California, for appellant Gulley.Stuart J. Starry, Frank, Woodfill, Lucas & Pressler, LLP,Houston, Texas, for appellants Charas, Jacoby, Beverage, andNewman.Bonnie R. Cohen and Kymberly E. Speer, Nelsen, Greenberg& Cohen, San Francisco, California, for appellees TransWorld Airlines, Inc., American Airlines, and Continental Air-lines.Donna H. Kalama, Goodsill, Anderson, Quinn & Stifel,Honolulu, Hawaii, on the briefs for appellee Trans World Air-lines.Harry Carter, Higgs, Fletcher, and Mack, San Diego, Califor-nia, arguing for appellee American Airlines.
_____________________________OPINION SILVERMAN, Circuit Judge:These consolidated cases cause us to consider once againthe circumstances under which the Airline Deregulation Actof 1978, 49 U.S.C. app. S 1305(a)(1) ("ADA"), preempts cer-tain state law claims. Although we have addressed the scopeof this statutory preemption before, we have taken these casesen banc sua sponte to rethink our previous decisions.1 Wenow hold that in enacting the ADA, Congress intended to pre-empt only state laws and lawsuits that would adversely affectthe economic deregulation of the airlines and the forces ofcompetition within the airline industry. Congress did notintend to preempt passengers' run-of-the-mill personal injuryclaims. Accordingly, we hold that Congress used the word"service" in the phrase "rates, routes, or service" in theADA's preemption clause to refer to the prices, schedules,origins and destinations of the point-to-point transportation ofpassengers, cargo, or mail. In the context in which it was usedin the Act, "service" was not intended to include an airline'sprovision of in-flight beverages, personal assistance to pas-sengers, the handling of luggage, and similar amenities. Weexpressly overrule our decisions in Harris v. American Air-lines, Inc., 55 F.3d 1472 (9th Cir. 1995), and Gee v. SouthwestAirlines, 110 F.3d 1400 (9th Cir. 1997), to the extent that theyare inconsistent with this interpretation.FACTUAL AND PROCEDURAL BACKGROUNDI. Beverage v. Continental AirlinesRobert A. Beverage was a passenger on a Continental Air-lines flight. He claims that a flight attendant hit his shoulderwith a service cart and caused him serious injuries, includinga dislocated shoulder and a cracked and detached scapularprosthesis. Beverage filed a state tort claim against Continen-tal for negligence and breach of contract. The district courtconcluded that the ADA preempted Beverage's claims andgranted Continental's motion to dismiss. Beverage timelyappealed the district court's ruling.II. Jacoby v. Trans World AirlinesMildred Jacoby was a passenger on Trans World Airlines.After the plane landed, another passenger opened an overheadbin and a large piece of luggage fell on Jacoby's head, caus-ing her injuries. Jacoby filed suit in state court against TWA;the airline removed the case and filed a motion to dismiss.Finding that the ADA preempted Jacoby's claims againstTWA, the district court granted the motion to dismiss. Jacobyappealed.III. Charas v. Trans World AirlinesCherie Charas, a passenger on a TWA flight, tripped overa piece of luggage allegedly left in the aisle by a flight atten-dant. Due to the fall, Charas claims that she suffered a frac-tured humerus and required a shoulder joint replacement.Charas sued TWA for negligence. In granting TWA's motionfor summary judgment, the district court concluded thatCharas's claims were preempted by the ADA. Charas timelyappealed the district court's ruling.IV. Gulley v. American AirlinesBernice Gulley was a passenger aboard a small commuterairplane operated by American Airlines. Gulley has a bonecondition that makes her susceptible to bone fractures. Sheclaims that she advised American of her condition andinformed the airline that she needed assistance in disembark-ing, but that American employees provided no help. Gulleyexited the plane, unassisted, on a stairway with only a single,movable chain handhold. She alleges that she fell and sus-tained injuries.Gulley brought a state negligence action against American.The district court held that although Gulley's claim fornegligent failure to provide safe equipment involved the"maintenance and operation" of the aircraft and was not pre-empted, Gulley's claim for negligent failure to assist herdown the stairs involved the rendering of "service" and waspreempted by the ADA. Gulley appealed the district court'sorder granting American's motion for summary judgment.V. Newman v. American Airlines, Inc.Elizabeth Newman's complaint stems from her attempt tofly from San Diego to Long Island on an American Airlinesflight. Newman claims that in making her reservations, sheinformed American that she was blind, suffered from a heartcondition, and required assistance in boarding the plane. Sheflew from Long Island to San Diego without incident. How-ever, it is alleged that on her return flight to Long Island, aflight attendant attempted to check Newman's carry-on bagsdue to space constraints. At that time, the flight attendantlearned that the bags contained Newman's medications. Theflight attendant then informed the captain that Newman mighthave a disability that would preclude her from flying. Thecaptain asked the flight attendant to ask Newman about hermedication and to ascertain the phone number of Newman'sdoctor to verify whether or not Newman was at risk for aheart attack during flight. When Newman could not rememberher doctor's number, American denied her passage until shecould provide a letter from her doctor certifying that it wassafe for her to fly.Prior to obtaining the required certificate, Newman wasrequired to stay overnight at a motel and suffered injurieswhen she fell upon boarding the shuttle bus transporting herthere. She filed various claims, including state tort claims andfederal statutory claims, against American. The district courtgranted American's motion for summary judgment, conclud-ing that Newman's state law claims were preempted by theADA and that American had "permissibly refused " boardingto Newman for the purposes of her federal claims. Newmantimely appealed.DISCUSSIONI. BackgroundSection 1305(a)(1) of the ADA provides: [N]o State or political subdivision thereof and no interstate agency or other political agency of two or more States shall enact or enforce any law, rule, reg- ulation, standard, or other provision having the force and effect of law relating to the rates, routes, or ser- vice of any air carrier . . . .49 U.S.C. app. S 1305(a)(1).2Prior to 1978, the Civil Aeronautics Board had economicregulatory authority over interstate air transportation pursuantto the Federal Aviation Act of 1958, 72 Stat. 731, asamended, 49 U.S.C. app. S 1301 et seq . However, the Act didnot expressly preempt state regulation, and further, it con-tained a "savings clause" providing that "[n]othing . . . in thischapter shall in any way abridge or alter the remedies nowexisting at common law or by statute, but the provisions ofthis chapter are in addition to such remedies." 49 U.S.C. app.S 1506 (recodified at 49 U.S.C. S 40120(c)); see AmericanAirlines, Inc. v. Wolens,
513 U.S. 219, 222
(1995). As aresult, states were not prevented from enforcing their ownlaws, despite the economic effect on the airlines. SeeCalifornia v. CAB, 581 F.2d 954, 956 (D.C. Cir. 1978) (hold-ing that states were permitted to regulate intrastate airfares);Nader v. Allegheny Airlines, Inc.,
426 U.S. 290
, 300-01(1976) (allowing states to enforce their own laws barringdeceptive trade practices).In 1978, Congress determined that efficiency, low prices,variety, and quality would be furthered by reliance on com-petitive market forces rather than pervasive federal regulation.See H.R. Conf. Rep. No. 95-1779, 95th Cong., 2d Sess. 53(1978). To prevent states from "undo[ing] federal deregula-tion with regulation of their own," Morales v. Trans WorldAirlines,
504 U.S. 374, 378
(1992), Congress enactedS 1305(a)(1) which preempts state laws "relating to the rates,routes, or service of any air carrier . . . ."However, the scope of this preemption has been a sourceof considerable dispute since its enactment. In our own cir-cuit, we have addressed the issue on several occasions. Priorto Harris, we held that the ADA did not preempt state law tortclaims that were only "tenuously connected" with airlinederegulation. See Lathigra v. British Airways PLC, 41 F.3d535, 540 (9th Cir. 1994) (looking to congressional intent, thepanel concluded that the ADA did not preempt state tortactions for negligent reconfirmation because they did notundermine the goals of airline deregulation.); West v. North-west Airlines, Inc., 995 F.2d 148, 151 (9th Cir. 1993) (holdingthat state law tort claim for compensatory damages was "tootenuously connected to airline regulation to trigger preemp-tion under the ADA").However, in 1995, we took a different approach. Harrisbrought a tort suit against American Airlines for continuing toserve alcohol to an intoxicated passenger who was harassingher. In declining to look beyond the bare preemption languageto congressional intent, the majority, over Judge Norris's dis-sent, concluded that the ADA preempted Harris's claimbecause it "relate[d] to [a] service " that the airline rendered,namely the provision of a drink. Harris, 55 F.3d at 1476. Thepanel did not discuss or distinguish West or Lathigra.Two years later, we wrestled with this problem again inGee. There, we expressed doubts about Harris and the valid-ity of its analysis. See Gee, 110 F.3d at 1404-05. However, inan attempt to mitigate the impact of Harris, we expresslyadopted the Fifth Circuit's approach in Hodges v. Delta Air-lines, Inc., 44 F.3d 334 (5th Cir. 1995) (en banc). See Gee,110 F.3d at 1407. Under Hodges, claims related to an airline's"operations and maintenance" are not preempted by the ADAwhile claims related to a "service" provided by the airline arepreempted. Hodges, 44 F.3d at 336-37. As JudgesO'Scannlain and Jolly predicted in their respective concur-rences in Gee and Hodges, the distinction between an airline'soperations and its service turned out to be as elusive as it isunworkable.3[1] Judge O'Scannlain noted that the operations-versus-service dichotomy invites nonsensical, inequitable, and incon-sistent results, and in any event has nothing to do with thepurpose of airline deregulation. See Gee, 110 F.3d at 1410.For example, under the rule announced in Gee, a plaintiffinjured when struck by a beverage cart door would be able tobring a tort action if the door swung open because a bolt wasmissing (because the injury arises out of the "operations andmaintenance" of the aircraft), but not if the flight attendantnegligently failed to latch the door properly (because theflight attendant's conduct relates to "service"). JudgeO'Scannlain demonstrated the folly of the distinction between"operations and maintenance" and "service, " and suggestedinstead that the court examine whether the state laws underly-ing the claims frustrate the goal of economic deregulation byinterfering with the forces of competition. See id.(O'Scannlain, J., concurring). If they do, the claims would bepreempted; otherwise, they would not.In reconsidering our view of the scope of the ADA's pre-emption, we conclude that Judge Norris and JudgeO'Scannlain got it right and that Harris is contrary to con-gressional intent. Further, although we recognize that we werebound by Harris when we decided Gee, we now believe thatthe rule we adopted in Gee was imprecise, difficult to apply,and inadequately reflective of the ADA's goal of economicderegulation. Accordingly, in defining the "service" that theADA preempts, we adopt Judge O'Scannlain's approach, anapproach consistent with Supreme Court precedent and theADA's plain language and legislative history.II. Supreme Court PrecedentThe Supreme Court twice has addressed the scope ofS 1305(a)(1). In both decisions, the Supreme Court took greatpains to articulate the boundaries of the preemption, indicat-ing that the ADA would not preempt most state law tortclaims. See Wolens,
513 U.S. at 230
-33; Morales, 504 U.S. at390. In Morales, the Court faced the question of whether air-lines were subject to states' laws banning deceptive advertis-ing. The Court concluded that state restrictions on advertisingwere precisely the type of economic regulation that Congressintended to preempt in deregulating the airline industry: Restrictions on advertising serv[e] to increase the difficulty of discovering the lowest cost seller . .. and [reduce] the incentive to price competitively . . . . [p]rice advertising surely `relates to' price.Morales,
504 U.S. at 388
-89 (internal citations and quotationsomitted). As such, the Court held that state actions based uponthese laws had the "forbidden significant effect " on rates,routes, or service, and thus were preempted. Id. at 388. How-ever, the Court explicitly limited its holding: [W]e do not . . . set out on a road that leads to pre- emption of state laws against gambling and prostitu- tion as applied to airlines . . . [s]ome state actions may affect [airline fares] in too tenuous, remote, or peripheral a manner to have pre-emptive effect.Id. at 390 (internal citations and quotations omitted).Likewise, in Wolens, the Court recognized the boundariesof S 1305(a)(1). In Wolens, the Court concluded that plain-tiffs' claims for breach of contract, stemming from the air-line's unilateral decision to devalue plaintiffs' frequent fliermiles were not preempted. See Wolens,
513 U.S. at 222
. In sodoing, the Court held that Congress did not intend to preemptcommon law contract claims. And, although the majority didnot specifically address whether personal injury claims wouldbe preempted, both concurring opinions did. JusticeO'Connor opined: Many cases decided since Morales have allowed personal injury claims to proceed, even though none has said that a State is not "enforcing" its "law" when it imposes tort liability on an airline. In those cases, courts have found the particular tort claims at issue not to "relate" to airline "services, " much as we suggested in Morales that state laws against gam- bling and prostitution would be too tenuously related to airline services to be preempted.Id. at 242 (O'Connor, J., concurring in part and dissenting inpart) (internal citations omitted).4 Further, Justice Stevensnoted: In my opinion, private tort actions based on common-law negligence or fraud . . . are not pre- empted . . . . Presumably, if an airline were negligent in a way that somehow affected its rates, routes, or services . . . the majority would not hold all common-law negligence rules to be pre-empted by the ADA.Id. at 235-36 (Stevens, J., concurring in part and dissenting inpart).Although Morales and Wolens do not directly resolvewhether the S 1305(a)(1) preemption encompasses state lawtort claims, they certainly suggest that such claims are notwithin the intended reach of the preemption.III. Plain Language and Congressional IntentOf course, in attempting to decipher the dimensions of theADA's preemption clause, we must look first to the statuteitself. We must attempt to "ascertain and give effect to theplain meaning of the language used," Hughes Air Corp. v.Public Utils. Comm'n, 644 F.2d 1334, 1337 (9th Cir. 1981),but must be careful not to read the preemption clause's lan-guage in such a way as to render another provision superflu-ous. Furthermore, the Supreme Court has cautioned us thatpreemption provisions are narrowly and strictly construed,and has directed us to "look to the provisions of the wholelaw, and to its object and policy." Kelly v. Robinson, 479 U.S.36, 43 (1986); see also Medtronic, Inc. v. Lohr ,
518 U.S. 470
,485 (1996). We must consider two presumptions about the nature of preemption. First, because the States are independent sovereigns in our federal system, [the Supreme Court has ] long presumed that Congress does not cavalierly pre-empt state-law causes of action . . . . Second, [the ] analysis of the scope of the statute's pre-emption is guided by [the Court's] oft-repeated comment . . . that the pur- pose of Congress is the ultimate touchstone in every pre-emption case.Medtronic,
518 U.S. at 485
(internal citations and quotationsomitted). Moreover, [I]n all pre-emption cases, and particularly in those in which Congress has legislated . . . in a field which the States have traditionally occupied, . . . [the court must] start with the assumption that the historic police powers of the States were not to be super- seded by the Federal Act unless that was the clear and manifest purpose of Congress.Id. (internal citations and quotations omitted).[2] It is evident that Congress's "clear and manifestpurpose" in enacting the ADA was to achieve just that -- theeconomic deregulation of the airline industry. Specifically,"the ADA . . . was designed to promote `maximum relianceon competitive market forces.' " Wolens ,
513 U.S. at 230
(citing 49 U.S.C. app. S 1302(a)(4)). The purpose of preemp-tion is to avoid state interference with federal deregulation.See id. Nothing in the Act itself, or its legislative history, indi-cates that Congress had a "clear and manifest purpose" to dis-place state tort law in actions that do not affect deregulationin more than a "peripheral manner." See Morales, 504 U.S. at390. Further, that Congress did not intend S 1305(a)(1) to pre-empt all state tort claims is evident from at least two otherprovisions of the airline regulatory statutes. First, airlines arestill required to maintain insurance that covers "amounts forwhich . . . air carriers may become liable for bodily injuriesto or the death of any person . . . ." 49 U.S.C. app. S 1371(q)(recodified as 49 U.S.C. S 41112(a)). Complete preemption ofstate law in this arena would have rendered pointless thisrequirement for insurance coverage. Second, the savingsclause, S 1506, which provides that "[n]othing . . . in thischapter shall in any way abridge or alter the remedies nowexisting at common law . . . ," read together with the preemp-tion clause, evidences congressional intent to prohibit statesfrom regulating the airlines while preserving state tort reme-dies that already existed at common law, providing that suchremedies do not significantly impact federal deregulation. 49U.S.C. app. S 1506 (recodified as 49 U.S.C.S 40120); seealso Morales,
504 U.S. at 378
.Understanding the objective of this legislation is critical tointerpreting the extent of its preemption. In a recent caseinvolving the interpretation and preemptive reach of thephrase "relates to" under ERISA, the Supreme Courtexplained that courts must examine " `the objectives of theERISA statute as a guide to the scope of the state law thatCongress understood would survive,' as well as to the natureof the effect of the state law on ERISA plans." California Div.of Labor Standards Enforcement v. Dillingham Constr., N.A.,Inc., 117 S. Ct. 832 (1997) (quoting and citing New York StateConference of Blue Cross & Blue Shield Plans v. TravelersIns. Co.,
514 U.S. 645, 656
(1995)). The Supreme Court hastwice looked to its interpretation of ERISA as an aid in inter-preting the preemptive language of the ADA. Wolens, 513U.S. at 223; Morales,
504 U.S. at 383
-84.[3] In its decisions interpretingS 1305(a)(1), the SupremeCourt has not had occasion to define the term "service." Inattempting to deduce its meaning, we are mindful that princi-ples of statutory construction require us to consider the termwithin its context. See Pension Benefit Guar. Corp. v. Carter& Tillery Enters., 133 F.3d 1183, 1186 (9th Cir. 1998). Air-lines' "rates" and "routes" generally refer to the point-to-pointtransport of passengers. "Rates" indicates price; "routes"refers to courses of travel. It therefore follows that "service,"when juxtaposed to "rates" and "routes, " refers to such thingsas the frequency and scheduling of transportation, and to theselection of markets to or from which transportation is pro-vided (as in, "This airline provides service from Tucson toNew York twice a day.") To interpret "service " more broadlyis to ignore the context of its use; and, it effectively wouldresult in the preemption of virtually everything an airlinedoes. It seems clear to us that that is not what Congressintended.[4] Nowhere in the legislative history, or in what remainsof the federal airline regulatory statutes, does Congress inti-mate that "service," in the context of deregulation, includesthe dispensing of food and drinks, flight attendant assistance,or the like.IV. Conclusion[5] We conclude that when Congress enacted federal eco-nomic deregulation of the airlines, it intended to insulate theindustry from possible state economic regulation as well. Itintended to encourage the forces of competition. It did notintend to immunize the airlines from liability for personalinjuries caused by their tortious conduct. Like "rates" and"routes," Congress used "service" inS 1305(a)(1) in the pub-lic utility sense -- i.e., the provision of air transportation toand from various markets at various times. In that context,"service" does not refer to the pushing of beverage carts,keeping the aisles clear of stumbling blocks, the safe handlingand storage of luggage, assistance to passengers in need, orlike functions. We expressly overrule our decisions in Harrisand Gee to the extent that they are inconsistent with this inter-pretation. Accordingly, we remand these cases to the panel forresolution consistent with this decision.5 REMANDED TO THE PANEL.
___________________________FOOTNOTES 1 Because of the need to clarify the law in this area, these cases weretaken en banc after they were assigned to a three-judge panel, but prior tothe panel's rendering a decision.2 In 1994, section 1305(a)(1) was amended and incorporated into theFederal Aviation Administration Authorization Act of 1994 ("FAAAA"),49 U.S.C. S 41713(b), to prohibit the enforcement of any state law "relatedto price, route, or service of an air carrier."3 In his concurrence, Judge Jolly opined that: The fact that the majority and the dissent disagree only on the application of this principle reveals that it promises uncertainty and inconsistent results . . . . I would prefer, instead of erecting these tenuous and uncertain judge-made distinctions, to rely upon the plain language of the provision . . . .Hodges, 44 F.3d at 340, 342.4 In their criticism of her "total preemption" approach, the majorityimplicitly agreed with Justice O'Connor's conclusion that personal injuryclaims are not preempted by the ADA. See Wolens ,
513 U.S. at 234
, n.9.5 Our analysis of the preemption question does not touch any federalclaims brought by plaintiff-appellants in these cases. The merits of all theclaims in issue, federal and state, are left to the panel. the end