Login | September 21, 2017

Hague treaty okays service by local mail

Law Bulletin columnist

Published: September 12, 2017

When Water Splash Inc. sued Tara Menon, a resident of Quebec, Canada, in Galveston, Texas, a state court judge authorized Water Splash to serve process on Menon by mail. The order was based on the judge’s interpretation of a Texas rule of civil procedure and Article 10 of a 1956 treaty called the Hague Service Convention.

Canada is listed online as saying it “does not object to service by postal channels” under the Hague convention. But in Menon’s appeal from a default judgment, the Texas Court of Appeals — with one justice dissenting — concluded that mailing summons to a defendant is not permitted under the treaty.

Federal judges had also disagreed on the validity of mailed service under the treaty, which covers more than 50 countries. The Texas majority was consistent with opinions from the 8th and 5th U.S. Circuit Courts of Appeals, while the dissent was backed up by rulings in the 9th and 2nd Circuits.

Granting certiorari to settle this dispute, the U.S. Supreme Court ruled that the Hague Service Convention does not prohibit service of process by mail. Water Splash Inc. v. Menon, 197 L. Ed. 2d 826 (May 22, 2017).

Here are highlights of Justice Samuel A. Alito Jr.’s opinion (with omissions not noted in the text):

This case concerns the scope of the Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil and Commercial Matters (Hague Service Convention), 20 U. S. T. 361.

The purpose of that multilateral treaty is to simplify, standardize and generally improve the process of serving documents abroad. To that end, the Hague Service Convention specifies certain approved methods of service and “pre-empts inconsistent methods of service” wherever it applies. Volkswagenwerk v. Schlunk, 486 U.S. 694 (1988).

Today we address a question that has divided the lower courts: whether the convention prohibits service by mail.

We hold that it does not.

The primary innovation of the Hague Service Convention — set out in Articles 2-7 — is that it requires each state to establish a central authority to receive requests for service of documents from other countries. When a central authority receives an appropriate request, it must serve the documents or arrange for their service, Art. 5, and then provide a certificate of service, Art. 6.

Submitting a request to a central authority is not, however, the only method of service approved by the convention. For example, Article 8 permits service through diplomatic and consular agents; Article 11 provides that any two states can agree to methods of service not otherwise specified in the convention; and Article 19 clarifies that the convention does not pre-empt any internal laws of its signatories that permit service from abroad via methods not otherwise allowed by the convention.

At issue in this case is Article 10 of the convention, the English text of 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), by their plain terms, address additional methods of service that are permitted by the convention (unless the receiving state objects). By contrast, Article 10(a) does not expressly refer to “service.”

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.

In interpreting treaties, we begin with the text of the treaty and the context in which the written words are used. For present purposes, the key word in Article 10(a) is “send.”

This is a broad term, and there is no apparent reason why it would exclude the transmission of documents for a particular purpose (namely, service). Moreover, the structure of the Hague Service Convention strongly counsels against such a reading.

The key structural point is that the scope of the convention is limited to service of documents.

Several elements of the convention indicate as much. First, the preamble states that the convention is intended “to ensure that judicial and extrajudicial documents to be served abroad shall be brought to the notice of the addressee in sufficient time.” And Article 1 defines the convention’s scope by stating that the convention “shall apply in all cases, in civil or commercial matters, where there is occasion to transmit a judicial or extrajudicial document for service abroad.” Even the convention’s full title reflects that the convention concerns “Service Abroad.”

We have also held as much. Schlunk, 486 U.S., at 701 (stating that the convention “applies only to documents transmitted for service abroad”).

In short, the text of the convention reveals, and we have explicitly held, that the scope of the convention is limited to service of documents. 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.

Indeed, under that reading, Article 10(a) would be superfluous. The function of Article 10 is to ensure that, absent objection from the receiving state, the convention “shall not interfere” with the activities described in 10(a), 10(b) and 10(c). But Article 1 already eliminates the possibility that the convention would apply to any communications that do not culminate in service, so it is hard to imagine how the convention could interfere with any non-service communications.

Accordingly, in order for Article 10(a) to do any work, it must pertain to sending documents for the purposes of service.

Menon attempts to avoid this superfluity problem by suggesting that Article 10(a) does refer to serving documents — but only some documents. Specifically, she makes a distinction between two categories of service.

According to Menon, Article 10(a) does not apply to service of process (a formal delivery of documents that is legally sufficient to charge the defendant with notice of a pending action). But Article 10(a) does apply, Menon suggests, to the service of “post-answer judicial documents” (that is, any additional documents which may have to be served later in the litigation).

The problem with this argument is that it lacks any plausible textual footing in Article 10.

Ultimately, Menon wishes to read the phrase “send judicial documents” as “serve a subset of judicial documents.”

That is an entirely atextual reading, and Menon offers no sustained argument in support of it. Therefore, the only way to escape the conclusion that Article 10(a) includes service of process is to assert that it does not cover service of documents at all — and that reading is structurally implausible and renders Article 10(a) superfluous.

The text and structure of the Hague Service Convention strongly suggest that Article 10(a) pertains to service of documents. The only significant counterargument is that, unlike many other provisions in the convention, Article 10(a) does not include the word “service” or any of its variants.

The Article 10(a) phrase “send judicial documents,” the argument goes, should mean something different than the phrase “effect service of judicial documents” in the other two subparts of Article 10.

This argument does not win the day for several reasons. First, it must contend with the compelling structural considerations discussed above.

Second, the argument fails on its own terms. Assume for a second that the word “send” must mean something other than “serve.” That would not imply that Article 10(a) must exclude service. Instead, “sending” could be a broader concept that includes service but is not limited to it. That reading of the word “send” is probably more plausible than interpreting it to exclude service, and it does not create the same superfluity problem.

Third, the French version of the convention is “equally authentic” to the English version. Schlunk at 699. Menon does not seriously engage with the convention’s French text. But the word “adresser” — the French counterpart to the word “send” in Article 10(a) — ”has been consistently interpreted as meaning service or notice.” Hague Conference on Private Int’l Law, Practical Handbook on the Operation of the Service Convention ¶279.

In short, the most that could possibly be said for this argument is that it creates an ambiguity as to Article 10(a)’s meaning. And when a treaty provision is ambiguous, the court may look beyond the written words to the history of the treaty, the negotiations and the practical construction adopted by the parties.

The traditional tools of treaty interpretation unmistakably demonstrate that Article 10(a) encompasses service by mail.

To be clear, this does not mean that the convention affirmatively authorizes service by mail. Article 10(a) simply provides that, as long as the receiving state does not object, the convention does not “interfere with the freedom” to serve documents through postal channels.

In other words, 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.

Because the Court of Appeals concluded that the convention prohibited service by mail outright, it had no occasion to consider whether Texas law authorizes the methods of service used by Water Splash.

We leave that question, and any other remaining issues, to be considered on remand.