dissenting:
I respectfully dissent. In my view, Sanchez’s claim is not preempted, so we should reverse.
The error in the majority’s result derives from its error in concluding that “the ticketed price included the tourism tax.” It did not. As the majority apparently concedes, Sanchez’s contract included the website language, “the user shall remain fully liable for all ... taxes....” 1 That means taxes attributable to her flight.
The airline collected a $22 tax from every passenger bound for Mexico, but it is undisputed that Mexico imposes this tax only on non-Mexicans, not Mexicans. Sanchez is a Mexican citizen, so Mexico does not impose the $22 tax on her trips to Mexico. The entire class she wishes to represent is exempt from the tax, so significant money is at stake. The airline collected the $22 as part of the $428.43 it charged to her credit card. It did not refund it to her and has no system for doing so. The record does not reveal whether the airline gave the $22 to the Mexican government, which was not entitled to it, or kept it for itself despite taking it under the premise of a tax collected on behalf of the Mexican government. The implication of the airline’s argument appears to be that it gave the $22 to the Mexican government. Sanchez sued for breach of contract and restitution.
The statute preempts state law claims “related to a price, route, or service.”2 The Supreme Court held in American Airlines v. Wolens3 that this preemption clause barred a state law claim under a state consumer fraud statute challenging retroactive changes in a frequent flyer program, but that a state law claim for breach of contract would not be preempted. In so doing, it applied its earlier holding in Morales v. Trans World Airlines4 that a comprehensive state scheme for regulating airline advertising of fares was preempted. The Court emphasized in both cases that its holding was consistent with the position that the federal agencies charged with enforcing airline deregulation had taken. In our case, unlike those, the federal agencies have expressed no position.
*1032The state Consumer Fraud Act, preempted in Wolens, addressed “unfair methods of competition.”5 Deregulation of restraints on competition lies at the heart of the Airline Deregulation Act. The Court pointed out in Wolens that the same sort of state regulation of competitive practices was preempted in Morales. The Court explained that the reason why the breach of contract claim was not preempted but the state statutory claim was, was that the state statute “serves as a means to guide and police the marketing practices of the airlines; [it] does not simply give effect to bargains offered by the airlines and accepted by airline customers.”6 The federal statute “could hardly have [been] intended to allow the States to hobble competition.”7 “We do not read the ADA’s preemption clause, however, to shelter airlines from suits alleging no violation of state-imposed obligations, but seeking recovery solely for the airline’s alleged breach of its own self-imposed undertakings.” 8
Applying the Wolens language, our task is to distinguish between a state-imposed obligation and one that the airline imposed on itself by making an offer that a customer accepted. Sanchez’s case is the latter sort. The airline offered to fly her to Mexico and back for a stated fare plus taxes. She agreed. Yet the airline charged her more than that. Though it called the $22 a charge for taxes, it was not. She did not owe the tax, and the airline did not owe the tax. This was no more a legitimate charge for taxes than it would be for a store in Fairbanks, Alaska (where there is no sales tax) to charge a tourist the price of her souvenir plus 8.5% sales tax.
The airline’s answer to this is not that Sanchez owed the tax, or that it owed the tax for flying Sanchez. Instead, it argues that it did not inquire so did not know which of its passengers were Mexican citizens, so it charged everybody tax whether they owed it or not. That argument does not address whether it breached its contract. If the deal is “the price is $9.95,” and the shop does not give the customers a nickel change from a ten dollar bill, the breach of contract does not somehow disappear because the shopkeeper contends that it would cost him more than a nickel to maintain a cash register, staff, and supply of nickels, to pay customers their change.
In its discussion of economic theory, Wolens explains that “maximum reliance of competitive market forces,” the point of airline deregulation, “requires effective means to enforce private agreements.”9 The traditional American method for enforcing private agreements that are not kept is to sue the parties that do not keep them. Sanchez is entitled to do that.
It will not do to claim that anything affecting how much money airlines make affects how much they have to charge to stay in business, so any claim against them is a claim “related to a price.” A First Circuit case in a different context suggests that customers care about the bottom line, not the components, so an airline must reduce its fare if governments require it to collect taxes, so refunding the tax portions of nonrefundable tickets would affect fares, so state law breach of contract claims are preempted.10 That argument, at least as applied to Sanchez’s claim, would go too far. In Wolens all the justices, including *1033the dissenters, agreed that state law personal injury and wrongful death claims are not preempted,11 yet airline costs and fares may well be affected by whether state law is restrictive or expansive on tort damages. Ticket prices are undoubtedly affected by whether passengers can sue airlines for breach of contract, yet Wolens holds that they can. That implies that a theoretical effect on price does not determine whether a state law claim is preempted. We know from Wolens that if the basis of the claim is breach of an undertaking the airline assumed for itself, the claim is not preempted. That, not a consequential impact on what airlines charge, is the test.
In our en banc decision in Charas v. Trans World Airlines,12 we held that the Airline Deregulation Act did not preempt personal injury claims, even though the claims related in various ways to the extent and nature of the services provided by flight attendants as adverse judgments might well affect the sort of in-flight services airlines provided. We so held even though the act preempts claims “relating to rates, routes or service,”13 explaining that the purpose of the preemption clause was “to preempt only state laws and lawsuits that would adversely affect the economic deregulation of the airlines and the forces of competition within the airline industry.” 14 State economic regulation was preempted, but not state law personal injury and breach of contract claims. Charas requires us to abjure the more expansive interpretation of the preemption clause that the majority applies. And certainly the recent trend of Supreme Court decisions on federal preemption does not bode well for needlessly expansive interpretations.15
About all there is to decide is whether Sanchez’s deal was to pay the Mexican tax whether any tax was imposed by Mexico on her trip or not, or to pay whatever tax was owed. To ask the question is to answer it. Her deal was to pay the fare and to “remain liable for all ... taxes.” Were we recklessly indulgent, we might say this is ambiguous, maybe she means to contract to pay whatever taxes there may be on anyone, not just her. And maybe the tourist in Fairbanks wishes to pay the sales taxes that would be due were she buying her souvenir in San Francisco instead of Fairbanks. But probably not. We need not even reach application of the doctrine of construing the contract contra proferentem to resolve ambiguity in Sanchez’s favor, because the only sensible construction is that Sanchez agreed to remain liable only for taxes attributable to her. The tourist who hands the $9.95 objet d’art to the cashier doubtless assumes, if she is from San Francisco, that it will cost her around $10.80, and may well hand the cashier a $20 bill instead of a $10. But her acceptance of an obligation to pay all taxes in addition to the marked price does not mean that she agrees to pay taxes that the *1034city and state do not charge and that she does not owe, so long as the shopkeeper calls the extra money “tax.” She explicitly agrees to pay $9.95 plus whatever tax is due, and since none is due, she (and Sanchez) is entitled to all her change.
Sanchez was not liable for the Mexican tax, never was, and could not “remain liable” for a tax she never owed. This was a tax on non-Mexicans, she is Mexican, and whether the airline kept her money or made gift of it to the Mexican government (a gift, since the Mexican government did not impose the $22 tax on Sanchez or on the airline for transporting Sanchez), Sanchez’s contract was not to pay this tax on people other than herself. Nor does it matter whether the airline provides a procedure for customers to seek refunds of improperly collected taxes. An airline is not like a government agency enjoying a narrowly construed waiver of sovereign immunity. An airline is like the Fairbanks shopkeeper, bound by contract law to charge the customer the marked price plus any tax, and not a higher price in the guise of a tax not due. Sanchez is entitled to sue for breach of contract and restitution of her money under Morales, Wolens, and Charas.
. Here is the contractual language from Aeromexico's website that we construe:
The user hereby accepts to be bound by the terms and conditions of purchase imposed by Aeromexico including, but not limited to, the payment of all amounts when they fall due and the compliance of all rules regarding the availability of tickets, products and services. The user shall remain fully liable for all evaluations, charges, rights, quotas, and taxes arising from the use of the Site.
. 49 U.S.C. § 41713(b)(1).
. 513 U.S. 219, 228, 115 S.Ct. 817, 130 L.Ed.2d 715 (1995).
. 504 U.S. 374, 391, 112 S.Ct. 2031, 119 L.Ed.2d 157 (1992).
. Wolens, 513 U.S. at 227, 115 S.Ct. 817.
. Id. at 228, 115 S.Ct. 817.
. Id. (quoting the petitioner's brief).
. Id.
. 513 U.S. at 230, 115 S.Ct. 817.
. Buck v. American Airlines, Inc., 476 F.3d 29, 35-36 (1st Cir.2007).
. Wolens, 513 U.S. at 234-35, 115 S.Ct. 817 (majority opinion); id. at 235, 115 S.Ct. 817 (Stevens, J., concurring in part and dissenting in part); id. at 242-43, 115 S.Ct. 817 (O’Connor, J., concurring in the judgment in part and dissenting in part).
. 160 F.3d 1259 (9th Cir.1998) (en banc).
. 49 U.S.C. app. § 1305(a)(1) (1994) (emphasis added). The preemption clause has since been amended to change “related to rates, routes, or service” to the current "related to a price, route, or service” and moved to 49 U.S.C. § 41713(b). This amendment does not change the meaning of the statute.
. Charas, 160 F.3d at 1261.
. See, e.g., Wyeth v. Levine, - U.S. -, 129 S.Ct. 1187, 173 L.Ed.2d51 (2009); Altria Group v. Good,-U.S.-, 129 S.Ct. 538, 172 L.Ed.2d 398 (2008).