United States District Court, Eastern District of New York
September 26, 1991
JACKIE PFLUG AND SCOTT PFLUG, PLAINTIFFS,
EGYPTAIR CORPORATION, A NEW YORK CORPORATION, DEFENDANT.
The opinion of the court was delivered by: Platt, Chief Judge.
MEMORANDUM AND ORDER
Plaintiffs sue defendant for injuries sustained during the
hijacking of a plane carrying plaintiff Jackie Pflug from Athens
to Cairo. Egyptair Corporation has moved pursuant to Federal Rule
of Civil Procedure 12(b)(1) to dismiss the complaint, or in the
alternative, for summary judgment pursuant to Rule 56(c). For the
reasons set forth below, this Court grants defendant's motion to
Plaintiffs Jackie and Scott Pflug are United States citizens
domiciled in the State of Minnesota. Defendant Egyptair
Corporation is a wholly owned subsidiary of Egyptair, the
national air carrier of Egypt which is incorporated under the
laws of Egypt. Egyptair Corporation, the subsidiary, is
incorporated under the laws of New York.
Plaintiff Jackie Pflug purchased a ticket in Cairo to fly round
trip from Cairo to Athens. On November 23, 1985, on her return
trip on Egyptair Flight 648, the plane was hijacked by three men.
After making an emergency landing in Malta, the highjackers
separated all American and Israeli passengers from the remainder
of the passengers. They then forced Jackie Pflug out of the plane
and onto a moving staircase abutting the plane. There, they shot
her in the head. She fell down the staircase and lay unattended
on the runway feigning death and drifting in and out of
consciousness. After five hours, employees of Egyptair removed
her and upon discovering that she was alive, sent her to a
While plaintiffs assert that the injuries sustained outside the
plane are not
covered by the Warsaw Convention*fn1, this Court views the
entire complaint as falling within the scope of the Warsaw
Convention. See Warsaw Convention, art. 17, 49 Stat. 3018
(1934); Day v. Trans World Airlines, Inc., 528 F.2d 31, 33 (2d
Cir. 1975), cert. denied, 429 U.S. 890, 97 S.Ct. 246, 50
L.Ed.2d 172 (1976). The question this Court must address is
whether treaty jurisdiction exists under the particular facts of
Article 28(1) 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. See Warsaw Convention, art. 28, 49 Stat. 3020
(1934). 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. See Gayda v. LOT
Polish Airlines, 702 F.2d 424, 425 (2d Cir. 1983); Smith v.
Canadian Pacific Airways, Ltd., 452 F.2d 798, 802 (2d Cir.
In this case it is undisputed that Egypt represents the
principal place of business of the carrier, the destination of
the particular flight, and the place where the contract was made.
The question is whether the carrier, Egyptair, is domiciled in
the United States. This Court has recently held that for purposes
of the Warsaw Convention, a corporation can have only one
domicile: its place of incorporation. See In Re Air Disaster
Near Cove Neck, New York, On January 25, 1990, MDL 799 (TCP)
(Ochoa v. Aerovias Nacionales De Columbia, S.A., 774 F. Supp. 725
(E.D.N.Y. 1991); De Londono v. Aerovias Nacionales De
Columbia, 774 F. Supp. 718 (E.D.N.Y. 1991)). The record indicates
that Egyptair, the carrier, is incorporated in Egypt. This Court,
therefore, has no subject matter (treaty) jurisdiction over the
For the foregoing reasons, defendant's motion is granted.