The Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters (“Hague Service Convention” or “Convention”), was designed to simplify and standardize the service of legal documents across international borders. But for decades, U.S. courts divided over a seemingly simple question: does the Hague Service Convention prohibit service by mail?
The Supreme Court recently answered this question, which seemed to pit different canons of interpretation against each other. In Water Splash, Inc. v. Menon, Justice Alito wrote for a unanimous Court, holding that the Convention does not prohibit service by mail. (As described below, the Convention does not expressly authorize service by mail, but the Supreme Court’s decision clearly states the requirements to serve by mail under the Hague Service Convention).
Water Splash, a company that produces aquatic playgrounds, sued Menon, a Canadian resident and former employee, in Texas state court in 2013. Water Splash obtained permission from the trial court to serve Manon by mail in Canada and did so. When Manon declined to respond, the court entered a default judgment and later denied a motion to set aside the judgment based on a lack of valid service. Manon appealed, and the Texas Court of Appeals reversed, holding that the Hague Service Convention prohibits service by mail. The Supreme Court granted certiorari.
At issue in the case is the text of Article 10 – and in particular 10(a) – in the Convention, which reads 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,
(b) the freedom of judicial officers, officials or other competent persons of the State of origin to effect service of judicial documents directly through the judicial officers, officials or other competent persons of the State of destination,
(c) the freedom of any person interested in a judicial proceeding to effect service of judicial documents directly through the judicial officers, officials or other competent persons of the State of destination.
Articles 10(b) and 10(c) address other permitted methods of service (barring objection from the destination state). But Article 10(a) does not use the word “service.” It uses the word “send.” This difference has divided courts for years.
In 1986, the Second Circuit relied on the Hague Convention’s purpose – to facilitate international service and generally unify service rules – in holding that the Convention did not prohibit service by mail. Ackermann v. Levine. The Second Circuit also cited reports that attributed the use of “send” instead of “serve” to careless drafting. But in 1989, the Eighth Circuit split from the Second. Bankston v. Toyota Motor Corp.. Guided by canons of statutory construction that call for deference to the text of a statute and a presumption that intent of the drafters is evidenced by the inclusion of specific language in one section but not another, the Eighth Circuit ruled that the Convention’s use of “send” in 10(a) did prohibit service by mail.
The State Department later issued a letter criticizing the Bankston decision, and stating that the Hague Service Convention did authorize service by mail. Nonetheless, some courts continued to rule that the Convention barred service by mail. In 2002, the Fifth Circuit, relying on similar canons to those in Bankston, joined the Eighth Circuit in ruling that the Convention does not permit service by mail. Nuovo Pignone, SpA v. STORMAN ASIA M/V. But in 2004, the Ninth Circuit joined the Second “in holding that the meaning of ‘send’ in Article 10(a) includes ‘serve.’” Brockmeyer v. May. The Ninth Circuit relied on the Convention’s purpose and consulted commentaries on the history of negotiations prior to the Convention. Several examples indicate that at the time the Convention was signed the parties understood Article 10(a) to permit service by mail. Finally, the court noted the State Department’s position on the matter, particularly its disapproval of the Eighth Circuit’s holding in Bankston.
In Water Splash, the Supreme Court sought to resolve this split concerning the Convention’s use of “send” instead of “serve”. As Justice Alito described it: the “question in this case is whether, despite this textual difference, the Article 10(a) phrase ‘send judicial documents’ encompasses sending documents for the purposes of service.” (emphasis original).
In a crisp 12-page decision, the Supreme Court unanimously agreed with the Second and Ninth Circuits. Instead of following canons of statutory construction, the Court relied on its cases interpreting treaties, which call for beginning “with the text of the treaty and the context in which the written words are used.” at *4, citing Schlunk, 486 U. S., at 699 and *7 (citing other cases). The court stressed that “The key structural point is that the scope of the Convention is limited to service of documents.” And, in “light of that, it would be quite strange if Article 10(a)—apparently alone among the Convention’s provisions—concerned something other than service of documents.” The court also referred to “the Convention’s drafting history, the views of the Executive, and the views of other signatories” in ascertaining the meaning of Section 10(a).
Is Service By Mail Permitted?
After thoroughly explaining why the Convention does not prohibit service by mail, the Supreme Court stressed “this does not mean that the Convention affirmatively authorizes service by mail.” Thankfully for litigants seeking to serve overseas parties, the court was express in its conclusion: “in cases governed by the Hague Service Convention, service 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.” And with that, a small employment lawsuit in Texas state court provided nationwide clarity on an issue that had divided courts for decades.