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IN RE AIR DISASTER NEAR COVE NECK

United States District Court, Eastern District of New York


September 20, 1991

IN RE AIR DISASTER NEAR COVE NECK, NEW YORK, ON JANUARY 25, 1990. JUAN GUILLERMO OCHOA, PLAINTIFF,
v.
AVIANCA (AEROVIAS NACIONALES DE COLOMBIA, S.A.), DEFENDANT.

The opinion of the court was delivered by: Platt, Chief Judge.

MEMORANDUM AND ORDER

Plaintiff was injured when the plane on which he was travelling crashed en route from Colombia to New York in early 1990. He brought this action against Aerovias Nacionales de Colombia, S.A. ("Avianca, S.A."), the operator of the aircraft to recover for personal injuries he sustained as a result of that crash. Avianca, S.A. now moves this Court for an Order dismissing plaintiff's action pursuant to Rule 12(b)(1) for lack of subject matter jurisdiction. For the following reasons, Avianca, S.A.'s motion is hereby granted.

I. Article 28 of The Warsaw Convention

The parties agree that the Warsaw Convention*fn1 governs the rights of the parties to this action. The issue presently before the Court concerns whether this Court possesses treaty jurisdiction pursuant to the terms of that Convention.

Article 28(1)*fn2 of the Convention provides that a suit for damages subject to its provisions must be brought in one of four locations: 1) the domicile of the carrier; 2) the principal place of business of the carrier; 3) the carrier's place of business through which the contract has been made; or 4) the place of destination. 49 Stat. 3020. This Article is jurisdictional in nature and the points of jurisdiction it specifies are national in scope. Smith v. Canadian Pacific Airways, Ltd., 452 F.2d 798, 801 (2d Cir. 1971). If, in any given action, the United States is not one of the fora specified by Article 28, the federal courts lack treaty jurisdiction under the Convention and therefore federal subject matter jurisdiction over the controversy. Gayda v. LOT Polish Airlines, 702 F.2d 424, 425 (2d Cir. 1983); Smith, 452 F.2d at 802. Plaintiff here focuses solely upon the first locus of jurisdiction specified by Article 28, the domicile of the carrier.*fn3

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 simultaneously.

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 countries.

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 1934, provides:

  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
  destination.

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.

B. Du Domicile Du Transporteur

In the original French, Article 28(1) speaks of jurisdiction "du domicile du transporteur." Warsaw Convention, art. 28(1), 49 Stat. 3007. The American version of this provision translates this phrase as "the domicile of the carrier." Id., 49 Stat. 3020. It is a matter of hornbook American law that a corporation is deemed "domiciled" in the state in which it is incorporated. Restatement 2d, Conflict of Laws § 11(2) comment 1 (1971). Without analysis, courts in this Circuit have transferred this understanding of corporate domicile from the domestic to the Warsaw Convention context, finding corporations to be domiciled at their place of incorporation under the terms of the Warsaw Convention. Smith, supra, 452 F.2d at 802; Eck, 360 F.2d at 809.

The French term domicile, however, as it relates to corporations, does not refer to the place of incorporation. Wyler v. Korean Air Lines Co., 928 F.2d 1167, 1175 (D.C.Cir. 1991); S. Speiser & C. Krause, Aviation Tort Law, § 11.41 n. 89 (1978). Instead, French law considers a corporation's domicile to be its siege social. G. Miller, Liability in International Air Transport, 301 (1977). Literally translated, siege social means the "seat of the corporation," see Cassell's French Dictionary (1981), and under French law, it refers to the corporation's headquarters. See Zimonyl v. Varig Airlines (Empresa de Aerea Rio Grandese), 1978 U.S. Av. Rpts. 122, 125 (France, Court of First Instance of Paris, 1st Div., Sec. 2, Apr. 28, 1978); Wyler, supra, 928 F.2d at 1175; G. Miller, supra, at 301; N. Matte, Treatise on Air-Aeronautical Law 426-27 (1981).

As the term "headquarters" indicates, implicit in this concept of domicile or siege social, is the idea that an individual or a corporation may have no more than one. As one French Court explained, considering whether a South American Airline's maintenance of a place of business in France created a domicile there:

  Paris cannot be the carrier's legal domicile, as a
  person, whether physical or legal can have only one
  domicile, which in this case is Rio de Janeiro, the
  headquarters of the Varig Company. . . .

Zimonyl, supra, 1978 U.S. Av. Rpts. at 125 (France, Court of First Instance of Paris, 1st Div., Sec. 2, Apr. 28, 1978).
*fn6 This view has been echoed by one noted commentator. Analyzing the distinctions between the common law concepts of domicile and the French notion of domicile, he concluded that they

  did not present much of a risk of creating serious
  difficulties between judicial applications of Article
  28. The reason is that beyond any difference in the
  technical definitions of the concepts of domicile,
  these definitions have in common an essential feature
  which is that, for a given purpose, there can be only
  one domicile.

G. Miller, supra, at 301 (citing Restatement 2d, Conflict of Laws § 11(2) (1971) and Dicey & Morris on the Conflict of Laws, Rule 5) (emphasis added).

The structure and language of Article 28(1) confirm that the drafters of the Convention intended to incorporate this French limitation into the treaty. First, it bears noting that the term domicile, as used in the Article, is singular rather than plural. More importantly, the structure of the provision itself suggests that the drafters intended the provision to specify four discrete points of jurisdiction, rather than four categories of locations which might each contain several appropriate points. Each of the three bases of jurisdiction other than domicile specify no more than a single country in any one instance. For instance, a carrier may only have one principal place of business under the convention. Smith, supra, 452 F.2d at 802 n. 13; Nudo v. Societe Anonyme Belge D'exploitation, 207 F. Supp. 191, 192 (E.D.Pa. 1962). Similarly, there may be only one place of business through which the contract of carriage is made and there may only be one destination. See Gayda v. LOT Polish Airlines, 702 F.2d 424, 425 (2d Cir. 1983); Butz v. British Airways, 421 F. Supp. 127, 130-31 (E.D.Pa. 1976) (destination for purposes of Convention is ultimate destination), aff'd mem., 566 F.2d 1168 (3d Cir. 1977). Use of the unitary French concept of domicile would therefore have maintained the parallel structure of the provision. Moreover, when it is recalled that domicile-based jurisdiction was primarily intended to apply to individuals, this conclusion is all but irresistible.*fn7 As applied to individuals, there may only be a single domicile for any given purpose at any given time. Zimonyl, 1978 U.S. Av. Rpts. at 125; G. Miller, supra, at 301. Indeed this is even true of common law notions of individual domicile. See Restatement 2d, Conflict of Laws § 11(2) & comment m (1971).

Given this general structure, this Court declines to conclude that the domicile provision, as applied to corporations, authorizes jurisdiction in two or more places simultaneously. Having clearly defined each of the other provisions of Article 28 to apply to only a single place in any one instance, and given the inherent limitation on the domicile provision as it applies to individuals, the drafters could not have intended that the same provision simultaneously create many points of jurisdiction as applied to corporations. That the drafters did not even explicitly consider the application of the provision to corporations during the Conference itself only makes the jurisdictional expansion proposed by plaintiffs all the more improbable. See Minutes, at 113-28, 169-70, 254.*fn8

By conforming the American understanding of Article 28 with that of other parties to the Warsaw Convention, see, e.g., Zimonyl, supra, 1978 U.S. Av. Rpts. at 125, adoption of a unitary concept of corporate domicile also comports with the Treaty's general aim of promoting uniformity in the treatment of aviation among the world's legal communities. See Lowenfeld & Mendelsohn, The United States and the Warsaw Convention, 80 Harv.L.Rev. 497, 498-99 (1966).

A unitary concept of corporate domicile also assures that each potential forum have a substantial connection with either the contract of carriage or with the carrier itself. See Minutes, supra, at 113; Lowenfeld & Mendelsohn, supra, 80 Harv.L.Rev. at 499. Under plaintiff's theory, on the other hand, a corporation may be subject to jurisdiction in a country with which it maintains no significant connection. For instance, under Article 28, jurisdiction does not exist where the carrier merely maintains a place of business. See Wyler, supra, 928 F.2d at 1175. Jurisdiction arises only where the contract of carriage is concluded at that place of business or the place of business is the principal place of business of the carrier. In this case, the United States is not the carrier's principal place of business and plaintiff's contract of carriage was not concluded through any place of business of Avianca, S.A. in this country. Rather, as the facts presented by the plaintiff establish, the United States is merely a country in which Avianca, S.A. maintains a subsidiary sales agent. That agent, the evidence showed, operates in much the same way as unincorporated divisions of Avianca, S.A. in other countries. It is, in essence, an incorporated place of business of Avianca, S.A. Plaintiff offers no explanation of why local incorporation should transform an ordinary place of business into a locus of jurisdiction under the terms of the Warsaw Convention. Certainly, the text or the legislative history of the convention give no indication that the fact of incorporation ought to effect the suitability of jurisdiction. In fact, neither the text nor the Minutes of the Conference mention incorporation at all. Given this lack of textual authority, this Court must decline to expand the jurisdictional provision of the treaty based upon the fact that Avianca, S.A. maintains a subsidiary sales agent in the United States, whether or not that agent qualifies as an alter ego of its parent.

The country in which a carrier maintains an incorporated subsidiary also bears no necessary relationship to the contract of carriage or the expectations of the parties. For example, the contract here was not concluded outside this country and the United States was not the destination of the ticket.

While he acknowledges that the drafters of the convention intended to limit jurisdiction, plaintiff argues that his approach does no violence to this objective. In his view, Article 28(1) was designed to prevent a carrier from being subject to suit in remote countries with underdeveloped legal systems.*fn9 The alter ego analysis, he contends, can create jurisdiction only in those places where the parent has incorporated subsidiaries. By incorporating in a given country, a carrier essentially certifies that that country's legal system offers adequate protections and benefits and thus prevents it from being subject to suit in some primitive area of the world.

This argument fails because it presumes that the desire to avoid suit in countries with less-advanced legal systems was the sole organizing principle behind Article 28(1). This, however, was clearly not the case. While concerned about this possibility, the drafters still allowed suit to be brought in such countries provided that they were the destination of the flight at issue or the place where the ticket was sold. Indeed, these provisions indicate that the drafters were more concerned with conforming the bases of jurisdiction to the contract of carriage itself and the expectations of the parties created by it. They did not permit jurisdiction in any country with an advanced legal system. Rather, they required that the contract have been made in the forum, that the destination be located there, and so on. See Minutes, supra, at 113. Focusing upon the legal sophistication of a given forum, therefore, unjustifiably ignores the other objective underlying the restrictive approach to jurisdiction embodied in Article 28.

Conclusion

The nature of the alter ego analysis used in determining the existence of federal diversity jurisdiction renders it inappropriate for use in the context of the Warsaw Convention. Where it applies, the analysis determines that a single corporation is domiciled in two separate places. The text and policies of the Warsaw Convention, however, indicate an air carrier may have no more than one domicile for purposes of the treaty. Thus, this Court concludes that the domestic alter ego analysis may not be applied under that Convention and that the carrier Avianca, S.A., is domiciled in Colombia where it is incorporated and headquartered, rather than in America where it maintains a subsidiary sales agent.

For the foregoing reasons, defendant's motion must be, and hereby is, granted.

SO ORDERED.


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