In an 8-0 opinion written by Justice Samuel Alito (Justice Neil Gorsuch did not participate), the U.S. Supreme Court resolved a conflict among the federal circuits as to whether Article 10 of the Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil and Commercial Matters prohibits service by mail. Water Splash, Inc. v. Menon, 581 U.S. __ (May 22, 2017).
This decision complements how Federal Rules of Civil Procedure 4 allows service by mail. It also demonstrates that judicial interpretation of a treaty is not handcuffed by the apparent “plain meaning” of the English version of the treaty. Text, context, drafting history, interpretation by the executive branch and other signatories, and the non-English version of the treaty, all guide judicial interpretation.
Problem & resolution
The controversy arose because the Hague Service Convention uses the word “send” and not “service” in Article 10 as follows:
Provided the State of destination does not object, the present Convention shall not interfere with – –
(a) The freedom to send judicial documents, by postal channels, directly to persons abroad,
. . .
Several U.S. courts ruled the plain meaning of the word “send” is not to “serve,” and therefore declined to follow the contrary interpretation espoused in the drafting history, by the executive branch since the Hague Service Convention was ratified, and by other signatories.
The Supreme Court rejected the “plain meaning of send” interpretation because it could not be reconciled with the text and the context of the Hague Service Convention. It would render Article 10 superfluous and ignore the sole purpose of the convention to serve documents. It is noteworthy that the court observed that the equally valid French text of the Treaty used the word “addresser” meaning service or notice.
The Supreme Court warns that the Hague Service Convention does not “affirmatively authorize” service by mail.
“[S]ervice by mail is permissible if two conditions are met: first, the receiving state has not objected to service by mail; and, second, service by mail is authorized under “otherwise-applicable law.”
When deciding whether to file suit against a defendant living abroad in either a federal or a Florida court, consider how this ruling complements the language of Fed. R. Civ. P. 4(f)(3), which allows service on individuals in a foreign country “by other means not prohibited by international agreement, as the court orders.” A federal district court can allow service by mail, but Florida law does not.
Of course, not all countries are signatories to the Hague Service Convention. Many South American countries are signatories to the Inter American Convention on Letters Rogatory, which presents other issues.