In his decision, Austin observed that the federal deregulation act's preemption provisionparticularly the clause "related to a price, route, or service"have attracted "considerable attention in the federal courts."
The U.S. Supreme Court has addressed the provision, and specifically the "related to" phrase, three times, he noted.
In its 1992 ruling Morales v. Trans World Airlines, 504 U.S. 374, the high court held the "related to" phrase expressed "a broad preemptive purpose" but was not limitless.
The Supreme Court has not explicitly addressed the definition of "service," said Austin, and federal appellate courts have been divided on its meaning as a result.
He noted that the Second Circuit, in striking down New York's enforcement of a "passenger bill of rights," in Air Transport Association of America v. Cuomo, 520 F.3d 218, did not specifically define "service." But the circuit did not have trouble viewing the supply of food and necessities during ground delay as part of a airline's service, said Austin (NYLJ, March 26, 2008).
Austin observed that a 1994 ruling by then-Southern District Judge Sonia Sotomayor in Rombom v. United Air Lines, 867 F.Supp 214, established a three-part test "generally applied" in the Second Circuit to determine if state law claims relate to "service" as contemplated by the federal deregulation act.
The Rombom test first requires deciding if "the activity at issue in the claim is an airline service." It then asks, if the activity at issue is a service, "whether the claim affects the airline service directly or tenuously, remotely, or peripherally." Lastly, if the activity "directly implicates a service" the courts have to decide if the "underlying tortious conduct was reasonably necessary to the provision of the service."
Rombom said claims should not be preempted where the incident is "outrageous conduct that goes beyond the scope of normal aircraft operations."
Applying the Rombom test, Austin said Biscone could not show the claims were not subject to preemption.
For example, the fraud and deceit claim failed because it was based on alleged misrepresentations about when the plane would take off.