In this Circuit, an air carrier is generally considered to be
domiciled in the country of its incorporation. Smith, 452 F.2d at
802; Eck v. United Arab Airlines, Inc., 360 F.2d 804, 809 (2d
Cir. 1966). Avianca, S.A. is a South American company,
incorporated and headquartered in Colombia. While this fact would
seem to end the jurisdictional analysis, plaintiff contends that
Avianca, S.A. has acquired a second domicile in the United
States. Borrowing an analysis from the law of federal diversity
jurisdiction, he notes that Avianca, S.A. maintains a
wholly-owned subsidiary, incorporated under the laws of New York,
Avianca, Inc., over which it exercises significant control. So
great is this control, plaintiff argues, that the two
corporations may be considered alter egos of one another and the
American domicile of the subsidiary imputed to the South American
parent,*fn4 thus conferring jurisdiction on this Court under the
terms of Article 28(1).
As far as this Court's research can determine, no prior Court
has considered whether a jurisdictional alter ego analysis may
properly be conducted under the terms of the Warsaw Convention.*fn5
Having considered the submissions and arguments of the parties,
this Court now concludes that the Warsaw Convention does not
allow the use of such an analysis.
II. Alter Ego Analysis in Diversity Jurisdiction
Although American law generally presumes that corporations are
entities separate from their subsidiaries, Fletcher Cyc. Corp. §
43 (1989), federal courts sitting in diversity will ignore such
corporate distinctions where the parent exercises sufficient
control over the subsidiary. Panalpina Welttransport GMBH v.
Geosource, Inc., 764 F.2d 352, 354 (5th Cir. 1985); Freeman v.
Northwest Acceptance Corp., 754 F.2d 553, 556-58 (5th Cir. 1985).
Where such control is exercised, the two corporations will be
deemed alter egos of one another and treated as a single
consolidated entity. In matters relating to diversity
jurisdiction, the effect of such treatment is to impute the
domicile or the business activities of each company to the other.
See Topp v. CompAir, Inc., 814 F.2d 830, 835-37 (1st Cir. 1987);
Panalpina, supra, 764 F.2d at 354; Freeman, supra, 754 F.2d at
556-58. Under no circumstances, however, does alter ego analysis
permit a corporation to ignore the domicile of either of the two
consolidated corporations; rather, in the cases in which the
subsidiary's domicile is imputed to the parent, the parent
acquires an additional domicile for jurisdictional purposes. J.A.
Olson Co. v. City of Winona, 818 F.2d 401, 413-14 (5th Cir.
1987); Panalpina, supra, 764 F.2d at 354; Fritz v. American Home
Shield Corp., 751 F.2d 1152, 1153-54 (11th Cir. 1985). Thus,
using an alter ego analysis, a single corporation may be found to
possess several separate domiciles for jurisdictional purposes
III. Corporate Domicile Under the Warsaw Convention
In contrast to domestic American principles of jurisdiction,
the terms of the Warsaw Convention indicate that the drafters of
the treaty did not see the concept of corporate domicile, or
domicile as it is rendered
in the original French, as so expansive. Rather, they saw a
corporation's domicile as unitary and did not contemplate that a
corporation might be simultaneously domiciled in two separate
A. Article 28
As is true with any treaty, Courts are bound to construe the
language of the Warsaw Convention to effectuate the shared
intentions of the contracting parties. Air France v. Saks,
470 U.S. 392, 399, 105 S.Ct. 1338, 1342, 84 L.Ed.2d 289 (1985). Of
course, those intentions are most fully embodied in the text of
the treaty itself. Courts must therefore follow that text unless
it is ambiguous or produces results which are "necessarily
absurd." Chan v. Korean Air Lines, Ltd., 490 U.S. 122, 109 S.Ct.
1676, 1683-84, 104 L.Ed.2d 113 (1989). Furthermore, because the
text was drafted in French by continental jurists, the French
text and the French legal meaning of the terms it contains
provide the clearest insight into the drafters's intentions. Air
France, supra, 470 U.S. at 399, 105 S.Ct. at 1342.
The official text of Article 28(1), ratified by the Senate in
L'action en responsibilite devra etre portee, au
choix du demander, dans le territoire d'une des Haute
Parties Contractantes soit devant le tribunal du
domicile du transporteur, du siege principal de son
exploitation ou du lieu ou il possede un
etablissement par le soin duquel le contrat a ete
conclu, soit devant le tribunal du lieu de
Warsaw Convention, 49 Stat. at 3007.
The unofficial American translation of this Article, which was
read to the Senate but not itself ratified, provides:
An action for damages must be brought, at the option
of the plaintiff, in the territory of one of the High
Contracting Parties, either before the court of the
domicile of the carrier or of his principal place of
business, or where he has a place of business through
which the contract has been made, or before the court
at the place of destination.
49 Stat. at 3020.