The opinion of the court was delivered by: LASKER
Third-party defendant British Airways moves pursuant to Rules 12(b) and 56 of the Federal Rules of Civil Procedure, to dismiss the third party action. Max Marco and DeMarco Cal Fabrics, third-party plaintiffs (hereinafter collectively referred to as "Marco") oppose the motion on the ground that material facts remain at issue for trial. For the reasons set forth below, the motion is granted in part and denied in part.
On November 9, 1982, Max Marco and his wife were passengers aboard a London to New York British Airways Concorde flight.
Mr. and Mrs. Marco asked for and were given no-smoking section boarding passes upon checking in. Prior to departure, Mr. and Mrs. Marco observed several ticket-holders smoking cigars in the lounge, and upon inquiring about this were told by a British Airways attendant that cigar smoking would not be allowed on the plane.
An error resulted in duplicate boarding passes being issued for the Marcos' seats and they were reassigned to other seats in the no-smoking section. During the flight, cigar smoking continued and was engaged in by passengers in seats surrounding and adjacent to the no-smoking section as well as in the aisles of the aircraft. As a result of the smoke the Marcos became ill and Mr. Marco missed three or four days of work.
Tickets for this flight were charged to the American Express credit card of Max Marco/DeMarco Cal Fabrics. American Express Travel Related Services filed a claim against Marco after he withheld payment for the Concorde tickets. Marco then filed this third party indemnity claim against British Airways. British Airways moves to dismiss the amended third party complaint (hereafter referred to as "the complaint") on the ground that Marco has failed to state a claim upon which relief may be granted.
The complaint alleges seven causes of action. Counts one, two and three seek relief for alleged discrimination in violation of 49 U.S.C. § 1374(b). Counts four and five seek to estop the use of a British Airways tariff as an affirmative defense. Count six claims a violation of the Civil Aeronautics Board ("CAB") regulation governing smoking in air travel. The seventh count alleges a violation of 49 U.S.C. § 1374(a) which imposes a duty on foreign air carriers to promulgate reasonable rules and practices.
The complaint alleges violations of 49 U.S.C. § 1374(b) which provides:
No air carrier or foreign air carrier shall make, give or cause any undue or unreasonable preference or advantage to any particular person . . . in air transportation in any respect whatsoever or subject any particular person . . . to any unjust discrimination or any undue or unreasonable prejudice or disadvantage in any respect whatsoever.
Count one of the complaint alleges that in not enforcing the provision of British Airways' manual instructing them to "firmly discourage" passengers from smoking in the no-smoking section, the crew treated other passengers with undue preference over the Marcos.
British Airways moves to dismiss this count on the ground that the discrimination intended to be prevented by the statute is not the type of discrimination alleged. We agree because we are not persuaded that Congress intended to provide for a passenger's every comfort in proscribing "unjust discrimination and undue prejudice." In Diefenthal v. C.A.B., 681 F.2d 1039 (5th Cir. 1982), cert. denied, 459 U.S. 1107, 74 L. Ed. 2d 956, 103 S. Ct. 732 (1983), the court found no discrimination to arise under 49 U.S.C. § 1374(b) based on distinctions in passenger treatment arising from a smoking/no-smoking differentiation. In that case, as well as in Polansky v. Trans World Airlines, Inc., 523 F.2d 332 (3d Cir. 1975), the court construed the statute as intending to protect a non-discriminatory right of access to air facilities. The Marcos do not allege any denial of access and were, in fact, aboard the flight. For this reason, count one of the complaint is dismissed, as is count three which alleges discriminatory preference to the smoking passengers when British Airways enforced their boarding passes but not the no-smoking section boarding passes of the Marcos.
Count two alleges discrimination arising from the manner British Airways applied its tariff which specifies "carrier does not guarantee allocation of any particular space in the aircraft." We fail to see how British Airways can be sued for the discriminatory performance of a negative contractual provision. However, even if this were possible, we see no connection between this tariff provision and a request for a smoking or no-smoking section seat. Such a request is not for a "particular space." Marco did not ask to sit in a specific seat, but rather in a section of the plane where other non-smokers were seated. The tariff provision ...