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