The NV Flyer

Hebert v. Vantage Travel Service, Inc. (D. Mass. Mar. 12, 2020).  According to the aggrieved passengers/plaintiffs, after their river cruise boat was disabled by a mechanical failure during a trip in Germany, the tour operator made unacceptable itinerary, lodging and dining changes, including providing a “cafeteria style buffet dinner at the hotel with food leftover from a previous meal.”  In their state court complaint, the plaintiffs alleged a cause of action under Massachusetts’s powerful consumer protection statute, General Laws Chapter 93A, among other claims.  The tour operator removed the case to federal court, where it was certified as a class action.

The tour operator moved for summary judgment as to all the claims of the plaintiffs, who filed a cross-motion for summary judgment as to liability.  One of the tour operator’s arguments was that 49 U.S.C. § 41713(b)(1), the ADA’s preemption provision, preempted the plaintiffs’ 93A claims because they “related to a price, route, or service of an air carrier.”  The tour operator contended that the statute covers “indirect air carriers” because 49 U.S.C. § 40102(a)(2) defines “air carrier” to include entities “undertaking by any means, directly or indirectly, to provide air transportation.”  The tour operator argued that it qualified as an indirect air carrier because it “is in the business of booking flight transportation as part of its tour packages” and 132 out of the 168 passengers had booked air transportation through the tour operator.  The tour operator then argued that the ADA preempted the 93A claims because “as long as an air transportation component is involved, the entire travel package is subject to DOT regulatory authority” and thus subject to preemption.

The court agreed that the tour operator qualified as an indirect air carrier but disagreed that the ADA preempted the 93A claims.  The court observed that the 93A claims related to the tour operator’s alleged false and deceptive advertising regarding the boat’s ownership, failure to offer a refund or fair market alternative after the boat became inoperable and failure to conspicuously identify the disclaimer provision in the tour participation agreement.  The court ruled that, because none of the 93A claims related to the air transportation component of the tour package, the statute did not preempt the claims.  According to the court, preemption could not occur “simply because air transportation was an element of a travel package.”

The court went on to rule that enforcement of the tour participation agreement’s disclaimer provision with respect to the 93A claims “would be contrary to public policy” and to deny the parties’ cross-motions for summary judgment as to the 93A claims due to disputed facts as to whether the tour operator actually provided all the services purchased by the plaintiffs.

Note:  There are relatively few reported opinions involving attempts by non-airlines to invoke ADA preemption as an indirect air carrier; they include ABC Charters, Inc. v. Bronson (S.D. Fla. 2008), Recreational Industries, Inc. v. LEP Profit International (N.D. Tex. 1999), and McLaughlin v. TWA Getaway Vacations, Inc. (S.D.N.Y. 1997).