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ARKIN v. TRANS INTL. AIRLINES

December 15, 1982

Ann ARKIN and Richard Arkin, Plaintiffs,
v.
TRANS INTERNATIONAL AIRLINES, INC., International Weekends' Charter Tours, Inc., International Weekends, Inc., United Synagogue of America, The B.F. Goodrich Company and Air Treads, Inc., Defendants.



The opinion of the court was delivered by: COSTANTINO

MEMORANDUM OF DECISION AND ORDER

COSTANTINO, District Judge.

 Defendant, the B.F. Goodrich Company ("Goodrich") has moved to dismiss the Amended Complaint herein pursuant to Fed.R.Civ.P. 12(b)(6) for failure to state federal claims for relief and accordingly for lack of subject matter jurisdiction pursuant to 28 U.S.C. § 1337 and 49 U.S.C. § 1374. The defendants, International Weekends' Charter Tours, Inc., International Weekends, Inc. ("Weekends" collectively) and United Synagogue of America ("Synagogue") have cross-moved for the same relief. For the reasons set forth below, the defendants' motion and cross-motions are hereby granted.

 This action arises out of a sequence of events leading up to and following an emergency landing at John F. Kennedy Airport precipitated by the explosion on take-off of tires affixed to the aircraft's landing gear. Defendant Goodrich is named as the manufacturer of the tires and Weekends and Synagogue are named as tour operators. In their complaint the plaintiffs allege a jurisdictional basis pursuant to 28 U.S.C. § 1337, which provides:

 (a) The district court shall have original jurisdiction of any civil action or proceeding arising under any Act of Congress regulating commerce or protecting trade and commerce against restraints and monopolies.

 Plaintiffs further assert that an actionable right exists under Section 404 of the Act, 49 U.S.C. § 1374, which provides:

 (a)(1) It shall be the duty of every air carrier to provide and furnish interstate and overseas air transportation, as authorized by its certificate.

 Since the statute authorizes no private civil remedy, plaintiffs' position is that one may be implied. Defendants, Goodrich, United Synagogue, and Weekends, maintain that a private civil remedy may not be implied. Additionally, Goodrich contendds that it is not an "air carrier" for purposes of the Act. Plaintiff may not sustain this action against Goodrich without a finding that Goodrich is an air carrier.

 Jurisdiction under Section 1337 is established where claims arise under Congressional regulation of commerce or trade. The Federal Aviation Act regulates commerce. Claims genuinely arising under the Act provide a jurisdictional basis. Rauch v. United Instruments, 548 F.2d 452 (3d Cir. 1976); Fitzgerald v. Pan Am, 229 F.2d 499, 502 n. 4, 5 (2d Cir.1956); Kodish v. United Airlines, 463 F. Supp. 1245 (D.Colo.1979), aff'd 628 F.2d 1301 (10th Cir.1980); Mortimer v. Delta Air Lines, 302 F. Supp. 276 (N.D.Ill.1976); East Haven v. Eastern Airlines, Inc., 282 F. Supp. 507, 513 (D.C.Conn.1968); Killian v. Frontier, 150 F. Supp. 17, 18 (D.C.Wyo.1957). Whether plaintiffs' action against Goodrich legitimately arises under the Act requires an interpretation of Section 1374 which imposes certain duties upon air carriers. An "air carrier" is defined as "any citizen of the United States who undertakes, whether directly or indirectly or by a lease or any other arrangement, to engage in air transportation." 49 U.S.C. § 1301(3). *fn1"

 Goodrich contends that since it is neither a direct nor an indirect air carrier, section 1374 is facially inapplicable. Goodrich correctly maintains that plaintiff alleges to facts that would establish Goodrich as an air carrier. Plaintiffs' claim against Goodrich must therefore be dismissed.Goodrich is engaged in "designing, manufacturing, assembling, testing, servicing, and inspecting tires to be used on the landing gear of jet aircraft." (Plaintiffs' Amended Complaint P32.) This allegation alone fails to support that Goodrich is a direct air carrier.

 While the Act does not set forth criteria for determining an indirect air carrier, the Civil Aeronautics Board ("CAB") construes it to be an entity which publicly represents that it engages in air transportation. Railway Express Agency, Inc. v. CAB, 120 U.S. App. D.C. 228, 345 F.2d 445 (D.C.Cir.), cert. denied, 382 U.S. 879, 86 S. Ct. 162, 15 L. Ed. 2d 120 (1967). Thus, travel agents, tour operators, and nominal "social clubs" which in fact publicly sell tours and air transportation are "indirect air carriers." See, e.g., Bratton v. Shiffrin, 635 F.2d 1228 (7th Cir.), cert. denied, 449 U.S. 1123, 101 S. Ct. 939, 67 L. Ed. 2d 109 (1980); CAB v. Carefree Travel, Inc., 513 F.2d 375 (2d Cir.1975); Monarch Travel Services v. ACCI, 466 F.2d 552 (9th Cir.), cert. denied, 410 U.S. 967, 93 S. Ct. 1444, 35 L. Ed. 2d 701 (1973); United States v. Bradley, 252 F. Supp. 804 (S.D.Tex.1966). Those entities "hold out to the public" that they engage in air transportation, Railway Express, 345 F.2d at 448, by selling flights to the general public, Carefree Travel, 513 F.2d at 387; by furnishing flights otherwise unserviced by regularly scheduled airlines, Bradley, 252 F. Supp. at 805; or by soliciting "members of the general public to purchase tickets on the flights it arranges." Monrach, 466 F.2d at 553. The common denominator linking these indirect air carriers is their portrayal and function as providers of travel arrangements and flight transportation. This court finds no legal authority holding a manufacturer, such as Goodrich, to be an air carrier, nor is Goodrich so perceived by the general public. A fortiori, the Act may not be applied to Goodrich. *fn2" This court lacks statutory authority to exercise jurisdiction over Goodrich. *fn3"

 In determining whether a statute implies a private remedy, the Supreme Court in Cort v. Ash, 422 U.S. 66, 95 S. Ct. 2080, 45 L. Ed. 2d 26 (1975) prescribes a four-tier inquiry: first, does plaintiff belong to the class "for whose especial benefit the statute was enacted"; second, "is there any indication of legislative intent, explicit or implicit, either to create such a remedy or deny one"; third, would implying a private remedy be "consistent with the underlying purposes of the legislative scheme"; lastly, is the matter traditionally governed by state law, "so that it would be inappropriate" to infer a federal cause of action. Id. at 78, 95 S. Ct. at 2088 (citations omitted).

 A consideration of the Cort factors precludes this court from inferring a judicial remedy. While plaintiff is a member of the class for whom § 404 of the Act was enacted, *fn4" the remaining Cort factors disfavor implying an actionable right.

 Congressional intent, the second Cort factor, is determined through the statutory language and legislative history. Northwest Airlines, Inc. v. Transport Workers, 451 U.S. 77, 101 S. Ct. 1571, 67 L. Ed. 2d 750 (1981); California v. Sierra Club, 451 U.S. 287, 101 S. Ct. 1775, 68 L. Ed. 2d 101 (1981); Touche Ross & Co. v. Redington, 442 U.S. 560, 99 S. Ct. 2479, 61 L. Ed. 2d 82 (1979); Transamerica Mortgage Advisors, Inc. v. Lewis, 441 U.S. 930, 99 S. Ct. 2048, 60 L. Ed. 2d 658 (1979); Cannon v. University of Chicago, 441 U.S. 677, 99 S. Ct. 1946, 60 L. Ed. 2d 560 (1979); Piper v. Chris-Craft Industries, 430 U.S. 1, 97 S. Ct. 926, 51 L. Ed. 2d 124 (1977); Polansky v. Transworld Airlines Inc., 523 F.2d 332 (3rd Cir.1975); Obenshain v. Halliday, 504 F. Supp. 946 (E.D.Va.1981). In the case at bar, the statutory language does not manifest an intent to vest in plaintiffs a ...


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