
    Azubuko CHUKWU, Plaintiff, v. BOARD OF DIRECTORS BRITISH AIRWAYS, Defendant.
    No. 93 Civ. 12828 (MEL).
    United States District Court, D. Massachusetts.
    April 26, 1995.
    Azubuko Chukwu, Boston, MA, pro se.
    John J. Davis, Morrison, Mahoney & Miller, Boston, MA, for defendant.
   LASKER, District Judge.

This case concerns a relatively new wrinkle in the interpretation of the Airline Deregulation Act: preemption of a breach of contract claim. Section 1305 of the Act forbids states from enacting or enforcing any law related to air carrier rates, routes, or services. 49 U.S.C.App. § 1305(a)(1). In its recent decision in American Airlines v. Wolens, — U.S. -, 115 S.Ct. 817, 130 L.Ed.2d 715 (1995), the Supreme Court distinguished contract claims from other claims arising under state law — which are broadly preempted by § 1305 — on the ground that contract actions merely enforce obligations undertaken privately, as distinct from those imposed by a State. Here, British Airways argues that, despite Wolens, the plaintiff’s breach of contract claim is preempted under § 1305.

I

On July 7, 1993, Chukwu Azubuko used a credit card travel service to make — and pay for — a reservation for his brother to fly on British Airways from Lagos, Nigeria to Grand Cayman. When Azubuko’s brother arrived at the Lagos airport later that day, however, he was not permitted to board the plane. Azubuko contends that his brother was told that his ticket was invalid because the fare had been refunded at Azubuko’s request. British Airways claims that Azubu-ko’s brother was denied boarding because he did not have the necessary documentation. Azubuko sues British Airways, alleging breach of contract, slander, and intentional infliction of serious emotional distress. British Airways moves to dismiss Azubuko’s complaint, asserting that all of his claims are preempted by § 1305 of the Airline Deregulation Act.

II

A The Tort Claims

In 1978, the Federal Aviation Act was amended by the Airline Deregulation Act to provide, in relevant part:

[N]o State ... shall enact or enforce any law, rule, regulation, standard, or other provision having the force and effect of law relating to rates, routes, or services of any air carrier....

49 U.S.C.App. § 1305(a)(1) (revised without substantive change, 49 U.S.C.A. § 41713(b)(1)). In Morales v. Trans World Airlines, Inc., the Supreme Court held that the words “relating to” are to be read broadly to mean, “having a connection with or reference to” 504 U.S. 374, 384, 112 S.Ct. 2031, 2037, 119 L.Ed.2d 157 (1992). The Morales Court, holding that § 1305(a)(1) prevents state attorneys general from using general consumer protection regulations to monitor airline fare advertisements, rejected the argument that only those state laws which are specifically addressed to the airline industry are preempted by § 1305(a)(1):

“Besides creating an utterly irrational loophole (there is little reason why state impairment of the federal scheme should be deemed acceptable so long as it is effected by the particularized application of a general statute), this notion ... ignores the sweep of the ‘relating to’ language.”

Morales, 504 U.S. at 386, 112 S.Ct. at 2038; see also Hodges v. Delta Airlines, 44 F.3d 334, 336 (5th Cir.1995) (“Laws of general applicability, even those consistent with federal law, are preempted if they have the ‘forbidden significant effect’ on rates, routes or services.”); Williams v. Express Airlines I, Inc., 825 F.Supp. 831, 833 (W.D.Tenn.1993) (The Morales decision “leaves little doubt that a claim based on common law tort ... is as subject to § 1305 pre-emption as any other claim, if it can be demonstrated that it ‘relates to’ airlines ‘rates, routes, or services.’ ”).

Accordingly, whether Azubuko’s tort claims are preempted depends upon whether they “relate to” a “service” within the meaning of § 1305. See Stagl v. Delta Air Lines, Inc., 849 F.Supp. 179 (E.D.N.Y.1994). Claims involving “services provided by individual airline employees directly to passengers, such as ticketing, boarding, in-flight service, and the like,” are related to airline ‘services’ under § 1305, and therefore preempted. Id. at 181 (quoting Stewart v. American Airlines, Inc., 776 F.Supp. 1194, 1197 (S.D.Tex.1991)); See also Hodges v. Delta Airlines, 44 F.3d 334, 336 (5th Cir.1995). In Williams v. Express Airlines I, Inc., the plaintiff, like Azubuko’s brother, was refused boarding. There, the court found that Williams’ false imprisonment claim “related to” an airline “service”, and was therefore preempted: “Unquestionably, the object of plaintiffs movement — to fly upon Flight 2463 — was an “airline service”. 825 F.Supp. at 833. Similarly, In Cannava v. USAir, 1993 WL 565341, 1993 U.S.Dist. LEXIS 16726 (D.Mass. January 7, 1993) the Court found that an allegedly rude ticketing agent was performing airline services when the agent tore up plaintiffs “bereavement fare” ticket. Id., 1993 WL 565341, at *6, 1993 U.S.Dist. LEXIS at *6.

The gist of Azubuko’s complaint is that British Airways wrongfully prevented his brother from boarding a flight, a process uniquely within the service provided and controlled by air carriers. His claims, therefore, are clearly related to an airline “service” within the meaning of § 1305(a)(1). Because Azubuko’s tort claims arise under state law, they are preempted by § 1305(a)(1).

B. The Breach of Contract Claim

Until recently, § 1305 of the Airline Deregulation Act was read by some courts to preempt contract claims — as well as actions arising under state tort law or other state laws of general application — relating to rates, routes or services of air carriers. See, e.g., Cannava v. USAir, 1993 WL 565341, 1993 U.S.Dist. LEXIS 16726 (D.Mass. January 7, 1993); Williams v. Express Airlines I, Inc., 825 F.Supp. 831, 833 (W.D.Tenn.1993). In American Airlines v. Wolens, however, the Supreme Court concluded otherwise. — U.S. -, 115 S.Ct. 817, 130 L.Ed.2d 715 (1995). Focusing upon the ADA’s prohibition that “No state ... shall enact or enforce any law [relating to air carrier rates, routes, or services],” the Wolens Court held that the Act did not preempt a breach of contract claim arising under the terms of a rates-and-services-related frequent-flyer program:

[Tjerms and conditions airlines offer and passengers accept are privately ordered obligations and thus do not amount to a State’s ‘enactment] or enforce[ment] [of] any law, rule, regulation, standard, or other provision having the force and effect of law1 within the meaning of § 1305(a)(1). A remedy confined to a contract’s terms simply holds parties to their agreements....

— U.S. at -, 115 S.Ct. at 824 (citations omitted). Azubuko alleges that British Airways privately undertook, and breached, a duty to transport his brother. In an attempt to distinguish Wolens, British Airways contends that Azubuko’s contract claim does not concern the breach of a term to which the airline “voluntarily stipulated.” This assertion, however, simply begs the question to be resolved at trial: Whether British Airways breached a duty imposed by a contract with Azubuko. Under Wolens, therefore, Azubu-ko’s contract claim does not appear to be preempted by § 1305 of the Airline Deregulation Act.

Very recently, Magistrate Judge Collings of this Court reached the same conclusion in a case — also filed by Azubuko — bearing a remarkable resemblance to the one at hand. Azubuko Chukwu E. v. Board of Directors Varig Airline, 880 F.Supp. 891 (D.Mass.1995). Like British Airways, Varig contended that, despite the Supreme Court’s decision in American Airlines v. Wolens, Azubuko’s contract claim was preempted by § 1305. The Court disagreed:

At the end, the American Airlines decision dictates the ruling on defendant’s motion for summary judgment in the instant case. The plaintiff is seeking to enforce a private agreement for transportation of his brother by air which he made with defendant. ... His breach of contract claim is not preempted.

Id. at 895. The motion at bar is decided on the same ground. It is worth noting, however, that the Wolens Court provided a caveat to its ruling that § 1305 does not preempt contract actions arising under state law:

This distinction between what the State dictates and what the airline itself undertakes confines courts, in breach of contract actions, to the parties’ bargain, with no enlargement or enhancement based on state laws or policies external to the agreement.

— U.S. at -, 115 S.Ct. at 826. Because the merits of this case have not yet been reached, any determination as to whether the contract alleged by Azubuko may be enforced without resort to such external laws and policies would be premature.

British Airways’ motion to dismiss is granted with respect to Azubuko’s tort claims and is otherwise denied.  