Adjunct Law Prof Blog

Editor: Mitchell H. Rubinstein
New York Law School

Sunday, March 30, 2008

New York's Passenger Bill of Rights Preempted

2dcirseal Air Transportation Association v. Cuomo, __F3d. ___(2d Cir. March 25, 2008) is an important preemption case. New York enacted a Passenger Bill of Rights because of long delays in airports. The statute provided:

Whenever airline passengers have boarded an
aircraft and are delayed more than three hours on the
aircraft prior to takeoff, the carrier shall ensure that
passengers are provided as needed with:
(a) electric generation service to provide temporary
power for fresh air and lights;
(b) waste removal service in order to service the
holding tanks for on-board restrooms; and
c) adequate food and drinking water and other
refreshments. N.Y. Gen. Bus. Law § 251-g(1). The law also requires all carriers to display
consumer complaint contact information and an explanation of these rights. Id.
§ 251-g(2).

In a well reasoned opinion, the court held:

We hold that requiring airlines to provide food, water, electricity, and
restrooms to passengers during lengthy ground delays does relate to the service
of an air carrier and therefore falls within the express terms of the ADA’s
preemption provision. As a result, the substantive provisions of the PBR,
codified at section 251-g(1) of the New York General Business Law, are

What I finding interesting about this case is not the legal analysis. Indeed, it is hard to argue with the court's rationale that part of the purpose in enacting airline degregulation legislation was to, well deregulate airlines. However, how can airlines fight the idea that one of their customers who is faced with a long delay is entitled to food and a clean rest room. What kind of business decision is that? Notice how none of the airlines are named plaintiffs. Rather, their trade association gets to play "bad cop."

Congratulations airline industry. Maybe its time to bring back the regulations.

Mitchell H. Rubinstein

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It is easy for airlines to circumvent the rules, especially for arrivals and departures. Anybody that has flown in or out of LaGuardia the last two years to either Chicago, South Florida, or any of the Delta/US Shuttle flights to Logan or National, knows that the airlines pad their times to make it easier for the airlines to claim that their flights are 'on-time,' or even early.

This is United's timetable. This shows flights from LaGuardia to O'Hare lasting 2 hours and 40 minutes, as well as code share partner US Airways flights to Charlotte being over 2 hours.

This makes it easy for the flights to leave later than their scheduled departure time, and arrive earlier than the arrival time. By artificially exagerating flight times, some of these rules have no teeth.

I knew on-time flights. On-time flights were friends of mine. You airline industry do not have on-time flights!

Posted by: Sujan Vasavada | Mar 31, 2008 8:13:00 PM

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