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Dad Can’t Sue Airline That Took Kids to Cairo

(CN) - A father failed to persuade the 1st Circuit to reinstate his claim that EgyptAir negligently allowed his ex-wife to board a flight to Cairo with their two children despite "red flags" suggesting she was abducting the kids.

Colin Bower claimed that in August 2009, his ex-wife, Mirvat El-Nady, violated a court order and took their children from Massachusetts to New York, where they boarded a flight to Cairo, Egypt at the John F. Kennedy International Airport.

After the couple divorced in December 2008, Bower had been given sole legal custody of the children, and they shared physical custody. The divorce decree also barred El-Nady from taking the children out of Massachusetts.

Bower sued both his ex-wife and EgyptAir Airlines Co., claiming the airline had allowed her to board despite a number of alleged "red flags'" that should have alerted airline employees that El-Nady was abducting the children.

Among the supposed red flags were the facts that El-Nady paid cash for tickets costing nearly $10,000, that their children's passports had no entry visas reflecting their arrival in the United States, and that El-Nady and her children had different last names.

Four months after taking the children to Egypt, El-Nady allegedly secured a court order in Cairo granting her custody of the children.

U.S. District Judge Richard Sterns in Boston dismissed the claims against EgyptAir, finding that the airline was unaware of El-Nady's plan to abduct her children and that it did not owe either Bower or the children a duty to investigate the alleged "red flags."

Bower appealed, claiming the district court lacked subject matter jurisdiction.

A three-judge panel of the 1st Circuit rejected Bower's jurisdictional arguments, saying El-Nady's alleged "fugitive" status does not put her beyond the reach of federal courts. She may be living in Egypt, the court noted, but Bower - and by extension, his kids - still reside in Massachusetts.

"Thus, there exists a complete diversity of citizenship between the parties such that the federal courts have subject matter jurisdiction to hear this case," Judge Juan Torruella wrote for the panel.

Affirming dismissal, the 1st Circuit ruled that Bower's claims against EgyptAir are preempted by the federal Airline Deregulation Act, which bars states from enacting or enforcing laws related to the prices charged, routes flown or services offered by an air carrier.

The federal appeals court said the claims are directly related to EgyptAir's ticketing, boarding and check-in services, so a victory for Bower would unfairly subject the airline to state-law requirements.

"Plaintiff's complaint is essentially that EgyptAir allowed El-Nady to board the aircraft without adequately investigating her pre-flight documentation and statutes," Torruella explained. "Numerous circuits have held that where an airline denied boarding, the claims were preempted ... 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 ... 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.'"

Torruella continued, "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 ... Were we to hold that EgyptAir violated its common law tort duty in this case, however, we would be imposing a fundamentally new set of obligations under the rubric of 'duty of care.'

He said if Bower prevailed, "the result would be a 'patchwork' of state regulations that effectively frustrate Congress's purposes in deregulating the airlines."

"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," Torruella wrote. "Absent a successful case in another jurisdiction, however, they would not have these same duties in any other airports," Torruella wrote.

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