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IN RE AIR DISASTER NEAR COVE NECK

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 ...


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