OPINION OF THE COURT
This appeal comes to us from a judgment following a trial on liability only, and submits questions of law both intricate and significant. The plaintiffs’ judgment follows the plaintiffs’ action based on a breach by the defendant of the State "Dram Shop Act” (General Obligations Law, § 11-101), alleging that the plaintiff Linda Manfredonia was assaulted by an intoxicated fellow passenger while in flight in the defendant’s air transport from New York to Los Angeles, with a stopover at Dallas.
The jury determined that the defendant was not guilty of common-law negligence in serving alcoholic beverages to the assaultive passenger or in failing to exercise proper care toward Linda to protect her from injury and humiliation. The jury’s verdict in favor of the plaintiffs ensued after a charge by the Trial Judge that a breach by the defendant of the provisions of section 11-101 of the General Obligations Law would render the defendant liable for the damages caused by the assault on Linda, if the jury found that the defendant had sold intoxicating beverages to the offending passenger when the passenger was intoxicated and that his intoxication had contributed to Linda’s injury.
The defendant urges reversal on the ground that the Dram Shop Act cannot have extraterritorial effect and that, in any event, the plaintiffs only interjected the statute as a ground for liability at the time the case was about to go to the jury and therefore waived the provisions of the statute.
I
On May 2, 1975 Linda Manfredonia was a passenger on the defendant’s flight from New York to Los Angeles, with an intermediate stopover at Dallas. On the flight from New York to Dallas she was seated across the aisle from a young man. She testified that the man was served several drinks of alcoholic beverages by the defendant’s attendants, and that he became increasingly intoxicated and abusive, made sexual advances to her, and when she did not respond, suddenly punched her in the eye. Although the defendant produced witnesses who denied that she had complained to the defendant’s employees about the man’s behavior,
The plaintiffs’ complaint alleged three causes of action: (1) that the defendant was guilty of common-law negligence when, as a common carrier, it failed to exercise due care to protect Linda’s safety as a passenger; (2) that the defendant was guilty of the violation "of the applicable laws that prohibit the sale of alcoholic beverages to a person in a state of intoxication”;
At the trial, nevertheless, in spite of the defendant’s objection, the plaintiffs claimed a violation of the Dram Shop Act as the ground of liability under the second cause of action, and the case was submitted by the Trial Judge to the jury under that theory. The Trial Judge also submitted to the jury the theory of recovery under common-law negligence as alleged in the first cause of action.
The jury found in favor of the defendant on the first cause of action and in favor of the plaintiffs on the second and third causes of action. The questions of law, as we see them, are: (1) whether the Dram Shop Act truly can apply to an air carrier in interstate flight, either as an exercise of extraterritorial jurisdiction or in the face of Federal pre-emption; (2) whether a cause of action can be based on a violation of Federal regulations akin to the provisions of the Dram Shop Act; and (3) whether a State court can enforce the regulations through a common-law action.
II
The Dram Shop Act was first enacted in 1873 (L 1873, ch 646), although an earlier act (L 1857, ch 628) provided its genesis (Bertholf v O’Reilly,
It therefore follows that the adverse verdict of the jury on the first cause of action sounding in common-law negligence does not in itself conclude the plaintiffs’ second cause of action, for the causes of action are diverse. The first cause of action rests on the defendant’s common-law duty as a common carrier to shield its passengers from harm arising from foreseeable risks (see Koch v Brooklyn Hgts. R. R. Co.,
The question then arises whether the statute applies extra-territorially.
Ill
In 1884—some 11 years after the original passage of the Dram Shop Act—it was held that the statute had no extraterritorial effect (Goodwin v Young,
The plaintiffs argue in answer that the principles of lex loci no longer are the criteria for the ascertainment of tort liability; that indeed the courts now look to a test based on the significant contacts of the parties to the forum—what in truth is the center of gravity of the dispute (see, e.g., Babcock v Jackson,
The true inquiries must be whether New York intended that its statute should operate beyond its limits, and then, whether as a matter of Federal control, the statute can operate beyond the New York boundaries, even assuming that the statute may have been intended to have that effect. Goodwin v Young (
In Illinois, for example, the courts have steadfastly refused to give extraterritorial effect to the Dram Shop Act (Eldridge v Don Beachcomber, Inc., 342 Ill App 151; Butler v Wittland, 18 Ill App 2d 578; Colligan v Cousar, 38 Ill App 2d 392; Liff v Haezbroeck, 51 Ill App 2d 70; Graham v General U. S. Grant Post, 43 Ill 2d 1; Waynick v Chicago’s Last Dept. Store, 269 F2d 322, cert den
Yet, in Minnesota (Schmidt v Driscoll Hotel, 249 Minn 376), in Connecticut (Zucker v Vogt,
In New York the reasons relied on in Eldridge (supra) would not fully support the conclusion reached in Illinois.
There is one obvious difference in all the cases invoking the Dram Shop Act, however, from the case before us. In this case, the consumption of the liquor causing Linda’s injury did not take place in the State. As the beverages were served during the flight, both the sale of the liquor and the injuries occurred beyond the limits of New York (cf. Alcoholic Beverage Control Law, § 106, subd 11). In all of the other cases the sale of the liquor took place in the State which had enacted the statute, although the injury was incurred outside the State. As the public policy reflected by our statute was to curb the evils and injuries arising from the sale of intoxicating beverages in the State (Bertholf v O’Reilly,
In addition, to enforce the statute for the benefit of any passenger embarking on a flight from New York to an out-of-State destination would cause chaotic and irreconcilable results springing from the uneven protection afforded to passengers boarding the flight from States not having the benefits of the Dram Shop Act.
We think, therefore, that the statute should not have been charged to the jury.
On another ground we think that the Dram Shop Act cannot be applied to an interstate flight. First, the Twenty-first Amendment does not grant the State power to regulate, the sale of alcohol out of State or in an area under exclusive Federal control (United States v State Tax Comm, of Miss.,
We note that although the Dram Shop Act cannot be the source of liability against the defendant, this in itself does not mean that the plaintiffs are relegated to administrative relief before the Civil Aeronautics Board. The Federal regulatory statute provides that "[njothing 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” (US Code, tit 49, § 1506; cf. Nader v Allegheny Airlines,
V
In the bill of particulars supplied by the plaintiffs with respect to the second cause of action, they asserted that they relied on Federal regulations as the basis of their claim, without specifically referring to any regulation. In fact, the Federal Aviation Administration under statutory authority (US Code, tit 49, § 1421, subd [a]) has forbidden the service of alcoholic beverages to an intoxicated person (14 CFR 121.575).
We address the Cort prescriptions to determine whether a cause of action is implied in favor of the plaintiffs for a breach of the Federal statute and regulation.
1. Was the statute intended to protect a particular class of persons? The statute, it is clear, is instinct with a pervasive interest in safety of the passengers (see, e.g., US Code, tit 49, § 1301, subd [4]; 1421, subd [b]; 14 CFR 91.9). The plaintiff Linda Manfredonia was entitled as a passenger to the observance of the regulation concerning the sale of liquor to one intoxicated. An intoxicated passenger may pose a serious threat to the safety of all on the aircraft.
2. Was there an intention to create or deny a private right? The statute is silent as to a denial of a private right. The savings clause, quoted above (US Code, tit 49, § 1506), suggests itself that private enforcement of a remedy is available. Moreover, the Federal courts have construed the statute to provide a privately enforceable right in several areas (see, e.g., Fitzgerald v Pan Amer. World Airways, 229 F2d 499; Williams v Trans World Airlines,
3. Would the right be consistent with the goal of the statute? The implication of a right of action is not only consistent with, but also in furtherance of the goal of protecting the safety of passengers and aircraft generally. If private persons are afforded the right of action, the compliance with safety regulations by air carriers is encouraged and the regulations strengthened by economic sanctions in favor of those who have been injured by noncompliance.
4. Is the cause of action one traditionally left to State law? New York law is, as we have noted, consistent with the construction of the statute as implying a cause of action (Daggert v Keshner,
For these reasons, we are satisfied that the plaintiffs may claim the benefit of the Federal statute and the regulation adopted under its authority. The second cause of action may therefore proceed and a new trial is required.
VI
It follows that the judgment should be reversed insofar as appealed from, and a new trial directed on the second cause of action, based upon the alleged breach of the Federal regulation, and the derivative cause of action.
Mollen, P. J., Rabin and Martuscello, JJ., concur.
Interlocutory judgment of the Supreme Court, Queens County, entered July 12, 1978, reversed insofar as appealed from, on the law, and new trial granted, with costs to abide the event.
Notes
. One of the other passengers on the flight called by the defendant testified that Linda had complained about the man’s conduct, but also stated that she had been struck by him after she had uttered a racial slur.
. This cause of action alleged only a claim for punitive damages. At the trial, against the defendant’s objection, the plaintiffs were permitted by the Trial Judge to amend the complaint to seek actual damages as well in this cause of action. The defendant urges that ruling as error. In view of our ultimate disposition, we find it unnecessary to discuss this contention.
. Section 11-101 of the General Obligations Law provides, in part, as follows: "1. Any person who shall be injured in person, property, means of support, or otherwise by an intoxicated person, or by reason of the intoxication of any person, whether resulting in his death or not, shall have a right of action against any person who shall, by unlawful selling to or unlawfully assisting in procuring liquor for such intoxicated person, have caused or contributed to such intoxication; and in any such action such person shall have a right to recover actual and exemplary damages.”
. In California recovery was allowed under the modern rule of choice of law doctrine, not on the Dram Shop Act, but on common-law negligence (Bernhard v Harrah’s Club, 16 Cal 3d 313).
. That regulation reads, in pertinent part:
"§ 121.575 Alcoholic beverages.
"(a) No person may drink any alcoholic beverage aboard an aircraft unless the certificate holder operating the aircraft has served that beverage to him.
*139 “(b) No certificate holder may serve any alcoholic beverage to any person aboard any of its aircraft who-
“(1) Appears to be intoxicated”.