           United States Court of Appeals
                      For the First Circuit
No. 12-1427

         COLIN BOWER, on his own behalf and as the guardian
        and legal custodian of his minor children, N and R,

                       Plaintiff, Appellant,

                                v.

                    EGYPTAIR AIRLINES COMPANY,

                       Defendant, Appellee,

                       MIRVAT EL-NADY BOWER,

                            Defendant.


           APPEAL FROM THE UNITED STATES DISTRICT COURT
                 FOR THE DISTRICT OF MASSACHUSETTS

          [Hon. Richard G. Stearns, U.S. District Judge]


                              Before

                        Lynch, Chief Judge,
                     Torruella, Circuit Judge,
                  and DiClerico,* District Judge.


     Joshua L. Solomon, with whom Barry S. Pollack, Sullivan &
Worcester LLP, Howard M. Cooper, Julie E. Green and Todd & Weld
LLP, was on brief for appellant.
     Christopher Carlsen, with whom Deborah Anne Elsasser, Clyde &
Co US LLP, Brian Paul Voke and Campbell Campbell Edwards & Conroy,
P.C., was on brief for appellee.
     Judith R. Nemsick, with whom Holland & Knight LLP and Michael
T. Maroney, was on brief for Amici Curiae International Air
Transport Association and Air Transport Association of America,
Inc.



*
    Of the District of New Hampshire, sitting by designation.
October 2, 2013




      -2-
            TORRUELLA, Circuit Judge.        This appeal stems from an

international parental kidnapping perpetrated by defendant Mirvat

El-Nady.    Plaintiff-appellant in this case, Colin Bower, is El-

Nady's former husband.      In August 2009, El-Nady acted in violation

of a court order when she drove the former couple's two minor

children to New York City, where they boarded an EgyptAir Airlines

Company ("EgyptAir") flight to Cairo, Egypt.        This prompted Bower,

on his own behalf and on behalf of his two minor children, to

initiate this lawsuit against El-Nady and EgyptAir. Bower claims

that the airline interfered with his custodial relations and was

negligent in allowing El-Nady to board the flight despite the

alleged presence of "red flags" suggesting that she was abducting

the two children. The district court granted EgyptAir's motion for

summary    judgment   and   dismissed    Bower's   claims,   finding   that

EgyptAir did not know of El-Nady's plan to abduct the children and

did not owe either Bower or the children a duty to investigate the

"red flags."    Bower now appeals from that determination, arguing,

among other things, that the district court erred in determining

that it had subject matter jurisdiction. We find that the district

court had jurisdiction over the claims and affirm their dismissal,

albeit on the grounds that the claims are preempted under the

Airline Deregulation Act, 49 U.S.C. § 41713 ("ADA").




                                   -3-
                                I. Background

A. Factual Background

            Mirvat El-Nady, an Egyptian citizen, and Colin Bower, a

United States citizen, met in Cairo, Egypt and married in 1998.

Subsequently, they moved to London where they had two children,

whom the parties refer to as "N" and "R."1            In 2005, the family

moved to Massachusetts, but the relationship between Bower and El-

Nady eventually soured, and they divorced in Massachusetts on

December 1, 2008.       Pursuant to the divorce decree, Bower was given

sole legal custody of the children, but he shared physical custody

with El-Nady.        The decree also prohibited El-Nady from taking the

children out of Massachusetts.

            On or about August 7, 2009, Bower dropped off the

children at El-Nady's home in Massachusetts for a court-ordered

visit.   On    August 11, 2009,      El-Nady drove the two children to

John F. Kennedy International Airport ("JFK") in New York.              Once

there, she purchased three one-way business-class tickets to Cairo,

Egypt, for which she paid almost $10,000 in cash.          El-Nady and her

children presented Egyptian passports for travel. EgyptAir did not

recognize     that    the   children's   passports   had   no   entry   visas

reflecting the children's arrival in the United States.           Moreover,




1
  The district court found that the children were dual citizens of
the United States and the United Kingdom, and that they were
eligible to become citizens of Egypt.

                                     -4-
EgyptAir did not comment on the fact that El-Nady and her children

had different last names,2 nor did it check for their I-94 forms.3

           Following their flight, El-Nady and the children remained

in Cairo, Egypt with no intention of returning to the United

States.   El-Nady had previously worked in Egypt and currently has

family there.   In December 2009, approximately four months after

moving to Egypt, El-Nady obtained an order from a court in Cairo

granting her custody of the two children.      Shortly thereafter,

Bower retained counsel in Cairo and appealed the custody order.4

The Cairo court granted Bower's motion seeking visitation rights,

and he was able to visit the children at least four times in Cairo,

under the supervision of El-Nady and members of her family.




2
   Per Egyptian naming customs, El-Nady retained her maiden name
after marrying while her children took their father's surname.
3
   The I-94 Form is an arrival/departure record issued by a Customs
and Border Protection ("CBP") officer to foreign visitors entering
the United States. The officer generally attaches the I-94 Form to
the visitor's passport when the visitor enters the United States.
As a general rule, when the visitor exits the United States via
commercial aircraft, he or she must fill out the departure portion
of the Form and provide it to the airline, which in turn provides
it to the CBP officer at the port of departure.       See 8 C.F.R.
§ 231.2(b)(1). However, United States citizens do not require I-94
Forms.   See 8 C.F.R. § 231.2(b)(2) ("The form I-94 requirement
. . . does not apply to United States citizens. . . .").
4
   While the record is murky as to the outcome of Bower's appeal,
and neither party briefed the issue, it appears that Bower was
ultimately successful and that on November 24, 2010, the court in
Cairo set aside and nullified its prior order granting El-Nady
custody. See App. 1103-09 (translating the Arabic order).

                                -5-
B. Procedural History

           On   February   5,    2010,      Bower   filed      this   action   in

Massachusetts Superior Court on his behalf and on behalf of his

children   in   his   capacity   as    guardian     of   "N"    and   "R."     As

defendants, he listed both El-Nady5 and EgyptAir.                His complaint

asserted that EgyptAir intentionally interfered with his custodial

relations and was negligent in allowing El-Nady and the children

passage to Egypt despite the presence of numerous "red flags" that

suggested a child abduction was in progress.             He also alleged that

he has incurred significant economic damages in attempting to

locate and recover his children since they were abducted by his

former spouse, and that he has suffered trauma and emotional

distress with physical manifestations, as well as loss of filial

consortium, due to the absence of his children.

           On March 8, 2010, EgyptAir removed the case to federal

district court on diversity grounds or, alternatively, on the

grounds that the claims were preempted by an international treaty

known as the Montreal Convention.6          Following removal, Bower filed

a motion seeking a ruling to resolve the issue of whether the court


5
    Bower's claims against El-Nady included interference with
custodial relations, false imprisonment, negligent infliction of
emotional distress, intentional infliction of emotional distress,
and loss of filial consortium.
6
  Convention on the Unification of Certain Rules of International
Carriage by Air, May 28, 1999, S. Treaty Doc. No. 106-45, 2242
U.N.T.S. 309 (entered into force Nov. 4, 2003) [hereinafter
Montreal Convention].

                                      -6-
possessed    subject   matter   jurisdiction.   The   district   court

determined that there was diversity jurisdiction, finding that both

El-Nady and EgyptAir were citizens of Egypt at the time the

litigation commenced.

            On March 21, 2012, the district court granted EgyptAir's

motion for summary judgment and dismissed all of Bower's claims

against EgyptAir.      As a threshold matter, the district court

rejected EgyptAir's argument that the claims against it were

preempted by the ADA and the Montreal Convention.          As to the

merits, the district court found that EgyptAir had no actual

knowledge that El-Nady in fact planned to kidnap the children, thus

dooming Bower's interference with custodial relations claim. As to

the negligence claims, the court concluded that EgyptAir owed no

duty of care, either to Bower or the children, to investigate

whether El-Nady was traveling with them in violation of a court

order.

            Following the district court's ruling on the motion for

summary judgment, Bower filed this timely appeal.7

                           II. Discussion

            We begin our discussion by explaining why the district

court possessed subject matter jurisdiction over this case.         We

then proceed to the matter of preemption under the ADA.



7
  The district court entered a default judgment against El-Nady on
October 26, 2012.

                                  -7-
A. Subject Matter Jurisdiction

           Bower's first argument on appeal is that the district

court erred when it found that the parties had complete diversity

of citizenship.       Specifically, Bower claims that El-Nady is a

"fugitive from justice" under 18 U.S.C. § 1073, since she fled the

United States to avoid prosecution for kidnapping his children.

Because she is a fugitive, he argues, the district court should

have   found   that   her   domicile   was   her   last   known   pre-flight

residence in Massachusetts.       Such a finding would, Bower argues,

properly divest the court of subject matter jurisdiction.

           We review the district court's conclusion that it had

subject matter jurisdiction over the complaint de novo. Fernández-

Vargas v. Pfizer, 522 F.3d 55, 63 (1st Cir. 2008).                  For the

following reasons, we disagree with Bower's jurisdiction argument

and find that the district court correctly concluded that El-Nady's

domicile for diversity purposes is Egypt.

           The law is well established that an adult person acquires

a legal "domicile" when he or she is physically present in a

location and has the intent to remain there for the indefinite

future.   Hall v. Curran, 599 F.3d 70, 72 (1st Cir. 2010); see

García-Pérez v. Santaella, 364 F.3d 348, 350 (1st Cir. 2004);

Rodríguez-Díaz v. Sierra-Martínez, 853 F.2d 1027, 1029 (1st Cir.

1988) (ascertaining an individual's domicile requires two showings:

(1) physical presence in a state; and (2) the intent to make such


                                   -8-
a state the individual's home). El-Nady, by virtue of her presence

in Egypt and her demonstrated intent to remain there, acquired a

legal domicile in Egypt. Her status as a fugitive does not prevent

such a finding where the "presence plus intent" rule is satisfied.

See   Stifel   v.   Hopkins,   477    F.2d   1116,   1123    (6th    Cir.    1973)

("Refugees or fugitives, who leave their homes because of . . .

apprehension of prosecution can establish domiciles within the

jurisdictions in which they seek asylum."); Popal v. Slovis, No. 12

Civ. 3916, 2013 WL 1234875 (S.D.N.Y. Mar. 27, 2013) (finding that

alleged   murderer     fleeing   to    California     to     evade    a     police

investigation could establish a domicile in California).

           It is only when these presence and intent requirements

cannot be met, such as when a fugitive's current whereabouts are

unknown, that the fugitive's last domicile before fleeing "should

be his domicile for diversity purposes."             See Lloyd v. Loeffler,

694 F.2d 489, 490 (7th Cir. 1982).           As Judge Posner explained:

           It seems absurd to hold that since a fugitive
           might be domiciled anywhere or maybe even
           nowhere the act of becoming a fugitive puts a
           person beyond the jurisdiction of the federal
           courts. Probably the last domicile of the
           fugitive before he fled should be his domicile
           for diversity purposes. . . . This is a simple
           rule, and avoids rewarding the fugitive for
           his elusiveness.

Id. at 490 (internal citation omitted).          Where an alleged fugitive

has   established    both   physical    presence     and    intent   to     remain

indefinitely at a known location, however, the logic of Lloyd does


                                      -9-
not sound with equal force.             Cf. Ríos v. Civiletti, 571 F. Supp.

218, 223 (D.P.R. 1983) (considering an army deserter, the court

stated, "the total circumstances of his desertion must be examined

to know if his stay, however long, in Mexico worked to effect a

change of his domicile").           Under such circumstances, the fugitive

has, through compliance with the "presence plus intent" rule,

established a new domicile in the state where she or he is hiding.

See United States v. Otherson, 480 F. Supp. 1369, 1371 n.4 (S.D.

Cal. 1979) ("[A] fugitive from justice can establish a legal

'domicile' where he is hiding.").

             It is undisputed that El-Nady, in August of 2009, fled

the United States and took her children to Cairo, Egypt, where she

had previously worked and currently has family.                   While there,

El-Nady initiated a custody battle in Egyptian courts for her

children.        Indeed, as asserted in Bower's complaint, El-Nady

intends     to   remain   in    Egypt    with   the   children   permanently.8

El-Nady's relocation and her intent to remain in Egypt satisfy the

requirements of the "presence plus intent" rule.                   See Padilla-

Mangual v. Pavía Hosp., 516 F.3d 29, 31-32 (1st Cir. 2008);

Sullivan v. Town of Ashfield, 227 Mass. 24, 26, 116 N.E. 565, 566

(1917) ("A domicile once acquired is presumed to continue until a

new   one   is    acquired     by   actual   change   of   residence   with   the


8
    In his Amended Complaint, Bower states that "on or about
August 11, 2009, [El-Nady] established a new domicile for herself
in Egypt."

                                        -10-
intention of remaining permanently at the place of removal.").                    As

such, at the time the suit was brought, El-Nady was domiciled in

Egypt,      and    Lloyd's    "pre-flight         domicile"       rule    is   wholly

inapplicable.

             Bower disagrees with this assessment and instead argues

that Lloyd is directly applicable to the facts of this case.                      In

Lloyd, he claims, the whereabouts of the fugitive defendants were

also known, given that the fugitives had sent several pieces of

correspondence postmarked from Milwaukee, Wisconsin to their family

members.          We   disagree.         The    mere    existence   of    postmarked

correspondence, on its own, fails to show that the fugitive

defendants intended to remain in Wisconsin indefinitely. See Miss.

Band of Choctaw Indians v. Holyfield, 490 U.S. 30, 48 (1989)

(stating     that      domicile    "is    not    necessarily      synonymous    with

'residence'").          In fact, the Seventh Circuit noted that the

plaintiff had spent "thousands of dollars on private detectives" to

locate the fugitive defendants and his kidnapped daughter, to no

avail.      Lloyd, 694 F.2d at 490.               In contrast, the undisputed

evidence here shows that El-Nady fled to Egypt with the intent to

remain there indefinitely and that Bower had no trouble finding

her, as evinced by his appeal of the Egyptian court's custody order

and   his    multiple      visits    with       his    children   under    El-Nady's

supervision.       Therefore, the holding in Lloyd is inapposite to the

facts of this case.


                                          -11-
           Next, Bower claims that if El-Nady qualifies as an

Egyptian domiciliary, so do the children "N" and "R," who were

living with her at the time this suit was filed.              Because the

children are plaintiffs in this case, he claims, there is not

complete diversity given that the defendants, EgyptAir and El-Nady,

are also Egyptian domiciliaries.       Although the district court did

not make a finding as to this issue, we conclude that the children

remain domiciled in Massachusetts.

           We   rely   on   federal   common   law   when   determining   a

litigant's domicile for diversity purposes.          Rodríguez-Díaz, 853

F.2d at 1030, 1033.         Typically, "relevant rules of state law

provide the basis for the applicable federal common law."          Id. at

1033.   In Massachusetts, the domicile of a child is the same as the

domicile of the parent who has lawful custody of the child. Durfee

v. Durfee, 293 Mass. 472, 478 (1936) (emphasis added); see also Gil

v. Servizio, 375 Mass. 186, 189 (1978) ("The domicile of the . . .

children [is] the same as the domicile of their parent who has

lawful custody of them.").      Accordingly, a parent without lawful

custody has "no power to change the domicile of his child while

. . . subject to a valid decree giving custody to the" other

parent.   Conley v. Conley, 324 Mass. 530, 534 (1949) (holding that

the domicile of the child follows that of the parent with lawful




                                  -12-
custody).   Bower was awarded sole legal custody of his children.9

Since a child's domicile follows that of the parent with lawful

custody, and El-Nady has no power to change the domicile of her

children while they are subject to a valid custody order, the

domicile of the children is Massachusetts.           See Conley, 324 Mass.

at 534.

            Thus, there exists complete diversity of citizenship

between the parties such that the federal courts have subject

matter jurisdiction to hear this case.

B.   Preemption Under the ADA

            Bower's second claim of error on appeal is that the

district court erred in awarding summary judgment to EgyptAir.

Specifically, Bower takes issue with the court's findings that the

airline had no actual knowledge that El-Nady was traveling with the

children in violation of a court order and was under no duty to

investigate that fact.      For the reasons that follow, however, we

conclude that Bower's common law tort claims against EgyptAir are

preempted by the ADA.

            We   review   the   district   court's   granting   of   summary

judgment de novo, drawing all reasonable inferences in favor of the

non-moving party.     Rockwood v. SKF USA, Inc., 687 F.3d 1, 9 (1st


9
   Bower relies heavily on the validity of             this Massachusetts
custody order to argue that El-Nady deprived           him of his custody
rights. He cannot, therefore, suggest that the         order is invalid or
should otherwise be ignored by this court for          diversity purposes
without undermining his claim on the merits.

                                    -13-
Cir. 2012).     We may affirm on any independently sufficient grounds

made manifest by the record.10          Id.     Federal preemption issues are

questions of statutory construction that we review de novo.

DiFiore v. American Airlines, Inc., 646 F.3d 81, 85 (1st Cir.

2011).

              To determine whether plaintiff's common law tort claims

are preempted by the ADA, 49 U.S.C. § 41713(b)(1), we begin by

noting   that       the   Supremacy    Clause    nullifies    state    laws   that

"interfere with, or are contrary to" federal laws enacted by

Congress.     Gibbons v. Ogden, 22 U.S. (9 Wheat.) 1, 210-11 (1824).

Federal preemption may be either express or implied, and where

express, the starting point for our analysis is the "language

employed by Congress and the assumption that the ordinary meaning

of that language accurately expresses the legislative purpose."

FMC   Corp.    v.    Holliday,   498    U.S.    52,   56-57   (1990)   (internal

quotation marks omitted).

              Here, the ADA expressly states that except as otherwise

provided, "a State, political subdivision of a State, or political

authority of at least two States may not enact or enforce a law,

regulation, or other provision having the force and effect of law



10
   In its appellate brief, EgyptAir argues alternatively that the
district court should have concluded that the claims were preempted
by the ADA and the Montreal Convention.        Bower opposed this
argument in his reply brief.      We affirm the district court's
dismissal of Bower's claims on the separate basis that they are
indeed preempted by the ADA.

                                        -14-
related to a price, route, or service of an air carrier that may

provide air transportation . . . ."               49 U.S.C. § 41713(b)(1).               As

we recently explained, ADA preemption analysis breaks down into two

sub-questions:        whether    the   claim      is   based    on    a    state      "law,

regulation, or other provision having the force and effect of law,"

(the "mechanism" question), and whether the claim is sufficiently

"related to a price, route, or service of an air carrier" (the

"linkage" question).          Brown v. United Airlines, Inc., 720 F.3d 60,

63 (1st Cir. 2013).

              In the case at hand, plaintiffs asserted common law

claims   of    interference         with   custodial     relations,            negligence,

negligent infliction of emotional distress, and loss of filial

consortium.      Turning to our recent decision in Brown, we find that

the   question       of   whether    these    claims     fall   within          the   ADA's

preemption provision has already been answered.                           In Brown, we

explained that state common law claims are covered by the language

"other provision having the force and effect of law."                          Id. at 65-

66; see United Airlines, Inc. v. Mesa Airlines, Inc., 219 F.3d 605,

607   (7th    Cir.    2000)     ("State    common      law   counts       as    an    'other

provision having the force and effect of law' for purposes of this

statute.").      But see Ginsberg v. Northwest, Inc., 695 F.3d 873,

880-81 (9th Cir. 2012), cert. granted, 133 S. Ct. 2387 (2013)

(ruling common law contract claims related to an airline's frequent

flyer program were not preempted by the ADA).


                                           -15-
          This is not to say that Congress intended all common law

tort and contract claims to be preempted by the ADA.        To the

contrary, the Supreme Court has clearly stated that there are

numerous claims that survive preemption.   Morales v. Trans World

Airlines, Inc., 504 U.S. 374, 390 (1992) (explaining that state

actions that affect airlines in too "tenuous, remote or peripheral"

a manner may survive preemption). For example, the Court has drawn

a distinction between state-imposed consumer protection standards

and claims that an airline breached its own contract terms.    Am.

Airlines, Inc. v. Wolens, 513 U.S. 219, 232-33 (1995) (preempting

plaintiffs' claims under the former, while allowing the latter).

Numerous courts have also recognized that the Federal Aviation

Authority's savings clause, 49 U.S.C. § 40120(c), as well as its

mandated insurance coverage provision, 49 U.S.C. § 41112(a), would

not make sense unless Congress intended certain tort claims to

survive preemption.   Id. at 231 n.7, 232-33; Taj Mahal Travel v.

Delta Airlines, Inc., 164 F.3d 186, 194 (3d Cir. 1998); Charas v.

Trans World Airlines, Inc., 160 F.3d 1259, 1265 (9th Cir. 1998).

          Thus, while our decision in Brown answers the "mechanism"

question, we must now turn to the "linkage" question portion of the

preemption analysis and ask whether plaintiff's common law claims

are sufficiently "relat[ed] to a price, route, or service of an air

carrier." Brown, 720 F.3d at 64.




                               -16-
           Boiled down to their essence, plaintiff's claims assert

that EgyptAir failed to respond appropriately to numerous "red

flags" when it allowed El-Nady to board a flight to Egypt with the

two abducted children.       Specifically, plaintiffs maintain that

EgyptAir should have been alerted by the differing surnames of the

mother   and   children;   the   "emergency"   nature   of   the   tickets,

purchased in cash on the day of the flight; the fact that Egypt is

not a signatory to the Hague Convention, enhancing the risk of

international abduction; and the fact that the children's Egyptian

passports did not contain U.S. entry visas.        Plaintiffs argue that

due to the presence of these "red flags," EgyptAir should have been

alerted to the possibility of an international child abduction and

either investigated further, required a signed parental consent

form, or had some procedure in place to deal with these types of

circumstances.

           In determining whether these claims are preempted by the

ADA, we first turn to the text of the statute.          It is plain that

the claims are neither related to a "price" or "route" in anything

more than the most tangential of ways.         The sticking point, then,

is "service."

           We have previously recognized a circuit split on the

interpretation of the word "service." DiFiore, 646 F.3d at 88 n.9.

Most notably, the Ninth Circuit in Charas narrowly interpreted

"service" to track closely to "price" and "route."                 In their


                                   -17-
opinion, "service" referred to the "frequency and scheduling of

transportation, and to the selection of markets to and from which

transportation is provided" as in an airline providing service

"from Tucson to New York twice a day." Charas, 160 F.3d at 1265-66.

            We decline to follow this approach.               As we noted in

DiFiore,    the   Supreme   Court's    opinion    in   Rowe   v.   N.H.    Motor

Transport Ass'n, 552 U.S. 364 (2008), has treated service more

expansively.11      In Rowe, the Court held that Maine's attempt to

regulate tobacco shipping in the state by requiring numerous

delivery     verification    procedures      substantially      impacted     the

"delivery services" offered by air and motor vehicle carriers. Id.

at 373.    In our view, Rowe forecloses the Charas interpretation of

"service" as a term closely related to prices and routes.                See Air

Transport Ass'n of Am. v. Cuomo, 520 F.3d 218, 223 (2d Cir. 2008)

(agreeing that Rowe "necessarily defined 'service' to extend beyond

prices, schedules, origins and destinations").                We also believe

that the Charas interpretation skirts the long-recognized canon of

avoiding superfluousness.      Corley v. United States, 556 U.S. 303,

314 (2009).       By narrowly interpreting "service" to relate to

scheduling    and   "service   to"    certain    destinations,     the    Charas

opinion does little to distinguish "service" from "route."


11
   The Court in Rowe was interpreting the preemption provision of
the Federal Aviation Administration Authorization Act of 1994, 49
U.S.C. § 14501(c), which deliberately copied the exact preemption
provision of the ADA. Rowe, 552 U.S. at 370. As such, the Court's
interpretation of the FAAAA preemption provision guides us here.

                                      -18-
           The broader view of "service," which pre-dates Rowe in

our sister circuits, includes items such as the handling of

luggage, in-flight food and beverage provisions, ticketing, and

boarding procedures. See, e.g., Cuomo, 520 F.3d at 223; Travel All

Over the World, Inc. v. Kingdom of Saudi Arabia, 73 F.3d 1423, 1433

(7th Cir. 1996); Hodges v. Delta Airlines, Inc., 44 F.3d 334, 336-

38 (5th Cir. 1995).   We implicitly adopted this approach shortly

after it was initially advanced by the Fifth Circuit in Hodges.

See Chukwu v. Bd. of Dirs. British Airways, 889 F. Supp. 12, 13 (D.

Mass. 1995), aff'd mem. sub nom. Azubuko v. Bd. of Dirs. British

Airways, 101 F.3d 106 (1st Cir. 1996) (unpublished table decision).

Our most recent decisions on the "linkage" question, DiFiore and

Brown, held that claims brought by luggage handlers against an

airline were preempted by the ADA, noting that they could fairly

relate to either a "price" or "service" of the airline. DiFiore,

646 F.3d at 88; see Brown, 720 F.3d at 71.

           Although this case presents a set of facts not squarely

addressed in the cases cited above, we believe these claims are

similarly covered by the term "service."   Plaintiff's complaint is

essentially that EgyptAir allowed El-Nady to board the aircraft

without adequately investigating her pre-flight documentation and

status.   Numerous circuits have held that where an airline denied

boarding, the claims were preempted.       See, e.g., Onoh v. Nw.

Airlines, Inc., 613 F.3d 596, 599-600 (5th Cir. 2010); Smith v.


                               -19-
Comair, 134 F.3d 254, 259 (4th Cir. 1998); see also Chukwu, 889 F.

Supp. at 13-14.       Whether the airline is allowing a passenger onto

the    plane   or   preventing     a    passenger      from   boarding,   that

determination takes place during the company's ticketing, check-in

and boarding procedures. See Chukwu, 889 F. Supp. at 14 ("The gist

of    [plaintiff's]    complaint   is    that   [the    airline]   wrongfully

prevented his brother from boarding a flight, a process uniquely

within the service provided and controlled by air carriers.").             We

thus conclude that the ticketing, check-in and boarding procedures

at issue here constitute a "service" for the purposes of the ADA in

accordance with our broader view of the term "service."

            Plaintiffs protest that the decision to allow boarding is

nonetheless too "tenuous, remote, or peripheral," Morales, 504 U.S.

at 390, in its relationship to the provision of a service.                 We

disagree. The Supreme Court has noted the breadth of the "relating

to" language and the broad interpretation it has afforded the

phrase    in   cases    interpreting      the   similarly-worded     Employee

Retirement Income Security Act.          Id. at 383-84; see Shaw v. Delta

Air Lines, Inc., 463 U.S. 85, 96 (1983).            Ultimately, Congress's

intent in enacting the ADA and its preemption provision was

ensuring "maximum reliance on competitive market forces" and "that

the States would not undo federal deregulation with regulation of

their own."    Morales, 504 U.S. at 378.         As such, state law may be

preempted even if it is indirectly or generally applicable, and


                                       -20-
preemption is favored where the law would have a "significant

impact" on Congress's deregulatory goals.        Rowe, 552 U.S. at 370-

71.

            In this case, the district court assumed that the claims

in question implicated "services," but it felt that the claims did

not "relate to" the "services" strongly enough.         Bower v. El-Nady,

847 F. Supp. 2d 266, 272 (D. Mass. 2012).       It viewed the negligence

claims as being similar to personal injury tort claims, which

nearly all courts agree are not preempted by the ADA.           Id. at 272-

73.   In reaching this conclusion, the court relied heavily on

Gill v. JetBlue Airways Corp., 836 F. Supp. 2d 33, 41-43 (D. Mass.

2011), which held that a personal injury lawsuit was not preempted

despite its implicating the "service" of boarding because it did

not sufficiently relate to Congress's deregulatory goals.              The

district court felt that in this case, although plaintiff's success

might have an "incidental impact" on the airline's ticketing

procedures, it would be a generalized one that would not put any

one airline at a competitive disadvantage.        Bower, 847 F. Supp. 2d

at 273.

            We disagree. Although the district court correctly noted

that personal injury claims are generally not preempted by the ADA,

there are numerous distinctions between personal injury claims and

the claims present in this case.           First, the fact that the ADA

insurance    provision   mandates    that    airlines   carry   sufficient


                                    -21-
insurance to pay "for bodily injury to, or death of" its passengers

suggests that Congress never intended to preempt personal injury

claims. See 49 U.S.C. § 41112(a). Plaintiffs do not allege bodily

injury here, however.

          Second, neither a tort claim like the one at issue in

Gill, nor the type of minor breach of contract claim at issue in

Wolens12 gives rise to the type of patchwork state regulations that

the ADA was intended to dissolve.     Much like the laws against

gambling and prostitution referenced as "tenuous" in Morales,

standard common law duties of care have little effect on an

airlines' day-to-day operations.   See Morales, 504 U.S. at 390.

Accordingly, the ADA offers little reason to treat a passenger who

slips and falls while deplaning differently than one who slips and

falls in a restaurant.13 Were we to hold that EgyptAir violated its

common law tort duty in this case, however, we would be imposing a


12
    In Wolens, the dispute centered on the terms of an airline's
self-imposed frequent-flyer program.     The Court relied on the
limited nature of the contract at issue in holding that the ADA's
preemption clause did not extend to a breach of contract claim
"seeking recovery solely for the airline's alleged breach of its
own, self-imposed undertakings."    Wolens, 513 U.S. at 228.     In
contrast, plaintiffs here seek to challenge a host of ticketing and
boarding procedures, bringing them well beyond the limitations of
the so-called "Wolens exception."
13
    Those types of injuries would more properly fall under the
purview of the Convention for the Unification of Certain Rules
Relating to International Transportation by Air, Oct. 12, 1929, 49
Stat. 3000, 137 L.N.T.S. 11 (entered into force Feb. 13, 1933)
[hereinafter Warsaw Convention], see McCarthy v. Nw. Airlines,
Inc., 56 F.3d 313, 316-18 (1st Cir. 1995), as amended by the
Montreal Convention.

                               -22-
fundamentally new set of obligations on airlines under the rubric

of   "duty    of   care."     These     would   include   heightened   and

qualitatively different procedures for the booking and boarding of

certain passengers on certain flights.          To defeat Congressional

intent to preempt, a mere reference to a duty of care will not

suffice. It is the nature and extent of that duty which alters the

analysis.    We believe the Third Circuit stated the issue well when

it said "the proper inquiry is whether a common law tort remedy

frustrates deregulation by interfering with competition through

public utility-style regulation.         When state law does not have a

regulatory effect, it is 'too tenuous, remote or peripheral' to be

preempted." Taj Mahal Travel, Inc., 164 F.3d at 194 (quoting

Morales, 504 U.S. at 390).

             Plaintiffs, however, suggest that the proper analysis

relates to the economic impact that the laws would have on the

airlines.    The district court seemed to agree, stating that "it is

difficult to imagine why any one airline would be put at a

competitive disadvantage with others subject to the same rules."

We do not see this as the correct analysis post-Rowe.14        As we have

recently     recognized,    the   ADA   preempts   laws   regulating   the



14
   Even if the competitive effect on the airlines was not the wrong
focus, EgyptAir arguably would feel the brunt of Bower's proposed
regulations, including specialized training for ticket agents and
limited kiosk check-ins for single parents traveling with children,
more than the average airline by virtue of its primarily flying to
a non-Hague Convention signatory country.

                                    -23-
operations of airlines "whether at high cost or low." DiFiore, 646

F.3d at 88 (explaining that skycaps' attempts to change the

airlines' signage and messaging, at little cost to the airline, are

"just what Congress did not want the states regulating").           In our

interpretation, Rowe shows that non-economic laws that nonetheless

have a significant regulatory effect on the airlines are preempted.

Id. at 86 ("[P]reemption might have been confined to state laws

that themselves aimed at economic regulation as opposed to other

state   interests,   but   that   course   too   has   been   foreclosed.")

(emphasis in original) (citing Rowe, 552 U.S. at 373-76).

            Plaintiffs persist, arguing that Rowe only talks about

economic motivation and that economic impact is still the correct

analysis.   We do not agree that the Court's focus was so narrow.

The Court in Rowe was concerned with whether the regulation imposed

on the airline service obligations beyond what the market required.

The Court stated that the law in question would require carriers to

provide services not dictated by the market, but "even were that

not so, the law would freeze into place services that carriers

might prefer to discontinue in the future." Rowe, 552 U.S. at 372.

            Significantly, Rowe recognized that Maine's attempts to

impose verification duties on tobacco deliverers were preempted.

The analogous conclusion would be that common law enforcement which

would ultimately impose additional verification duties on airlines

(in the business of transporting people, not tobacco) is also


                                   -24-
preempted.    Cf. Rowe, 552 U.S. at 373 ("[t]o allow Maine to insist

that the carriers provide a special checking system would allow

other States to do the same.        [This] . . . could easily lead to a

patchwork of state service-determining laws, rules, and regulations

. . . inconsistent with Congress's major legislative effort to

leave such decisions . . . to the competitive marketplace.").

             Plaintiffs attempt to frame their claims as doing no more

than   applying    general   tort   principles     to   the   airlines.   In

plaintiff's estimation, the duty to investigate for abductions

would only be triggered when an airline is faced with specific

circumstances.     Much like airlines are constrained by general tort

principles    in   dealing   with   drunk    and   disorderly    passengers,

plaintiffs claim, the airlines must exhibit a basic duty of care in

preventing child abductions. We are unconvinced by this argument.

Unlike dealing with drunks, taking general care to avoid deplaning

injuries, or preventing gambling/prostitution rings from being run

out of their airport lounges, plaintiff's claims would impose

duties on the airlines beyond what is expected of nearly every

other business.       As the district court found when dismissing

plaintiff's tort claims, plaintiff's set of "red flags" are not

nearly as rare as they contend.15          See Bower, 847 F. Supp. 2d at


15
   According to EgyptAir, passengers fly on an "emergency" basis,
often paying with cash, every day, and a parent travels with
children but no spouse present on nearly every flight. In this
case specifically, El-Nady did not take Bower's last name in
accordance with Egyptian naming customs, meaning EgyptAir sees

                                    -25-
277-78.      In other words, it was not at all obvious that an

abduction was taking place, as it is when an inebriated passenger

causes a scene.        Moreover, international child abductions tend to

uniquely impact airlines, and even then only the subset of airlines

flying    transnational      routes,    as     opposed    to    other    types    of

businesses    serving     the   public.       This   is   not   true    with     more

generalized tort cases.

            Furthermore, if plaintiffs prevailed, the result would be

exactly what Rowe and Morales warn against: a "patchwork" of state

regulations     that    effectively    frustrate      Congress's        purpose   in

deregulating the airlines.         Rowe, 552 U.S. at 373; Morales, 504

U.S. at 378-79.    Were plaintiffs to succeed with their claims, the

result would likely force international airlines departing from

Massachusetts to institute investigative procedures, define "red

flags," and develop protocols to deal with international child

abductions.16    Absent a successful case in another jurisdiction,

however, they would not have these same duties in any other

airports.



mothers with different last names from their children regularly.
16
    This is particularly troubling given that the imposition of
state law standards on the operations of international airlines is
a subject highly regulated under the obligations of various
treaties. The deregulation of foreign air transportation is itself
enshrined in international obligations of the United States. See,
e.g., 49 U.S.C. § 40101(e); International Air Transportation
Competition Act of 1979, § 17, Pub. L. No. 96-192, 94 Stat. 35, 42
(1980).

                                       -26-
          Congress is aware of the issues that international child

abductions raise with respect to the airlines.      Should Congress

choose to act in this area with federal regulation, it will be with

full knowledge of the economic and non-economic impacts on the

airline industry.     This is highly preferable to a state-by-state

(and potentially, jury-by-jury) determination of what, exactly,

airlines must do when confronted with a possible abduction attempt.

          In conclusion, we hold that plaintiff's claims, which

challenge airline ticketing, check-in, and boarding procedures,

sufficiently relate to the service of an air carrier and are

therefore preempted by the ADA.17

                           III. Conclusion

          For the above-stated reasons, we affirm the district

court's dismissal of plaintiff's claims.

          Affirmed.




17
    Because we find that the claims are preempted, we need not
address Bower's claim that the district court erred in excluding
one of his expert witnesses.

                                 -27-
