IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_______________
No 01-31486
_______________
NUOVO PIGNONE, SPA,
Plaintiff-Appellee,
VERSUS
STORMAN ASIA M/V, ETC., ET AL.,
Defendants,
FAGLIOLI SPA,
IN PERSONAM,
Defendant-Appellant.
_________________________
Appeal from the United States District Court
for the Eastern District of Louisiana
_________________________
October 31, 2002
Before SMITH and BENAVIDES, Circuit capable of entering the pre-selected port of
Judges, and FITZWATER,* District Judge. discharge.
JERRY E. SMITH, Circuit Judge: Fagioli entered into a secondary contract
with Blau Shipping & Trading, Ltd. (“Blau
Fagioli, S.A. (“Faglioli”), agreed to furnish Shipping”). This contract, known as a con-
a ship for the maritime transport of Nuovo linebooking note, specified that the vessel M/V
Pignone, SpA’s (“Nuovo Pignone’s”) 771,000 STORMAN ASIA (“STORMAN ASIA”)
kilogram reactor from Italy to Louisiana. The would be used to transport the reactor and that
reactor was damaged after arrival at the Port Geismar or New Orleans was the port of
of New Orleans, and Nuovo Pignone sued. discharge. Blau Shipping then entered into a
The district court found that Fagioli, an Italian secondary conlinebooking note with Key Lar-
company, was subject to personal jurisdiction go Transportes Maritimos (“Key Largo”), the
in Louisiana and that Nuovo Pignone properly owner and operator of the STORMAN ASIA.
had effected service of process by mail. We Nuovo Pignone’s Louisiana client and Key
affirm the assertion of personal jurisdiction but Largo were responsible for unloading the
reverse the determination that article 10(a) of reactor at the point of destination.
the Hague Convention permits service of
process by mail. The reactor was loaded on board the
STORMAN ASIA in Italy and transported
I. across the Atlantic Ocean without incident.
Fagioli is an Italian corporation providing While the reactor was being transferred to a
worldwide transportation and logistical servic- barge at the Port of New Orleans, one of the
es necessary to transport heavy-lift cargo. Nu- cables of the vessel’s onboard shipping crane
ovo Pignone, also an Italian company, con- broke, causing the reactor to fall. The reactor
tracted with Fagioli for the transport of a large and the deck of the barge were damaged. Nu-
EO reactor from Italy to Louisiana. Under the ovo Pignone alleges that the accident resulted
terms of the contract, Fagioli was responsible from Fagioli’s failure to provide a vessel with
for selecting a vessel for the transit. a satisfactory onboard shipping crane, as re-
quired by the original contract.
The contract required that Fagioli furnish a
ship possessing specified performance capabili- II.
ties. Fagioli agreed to furnish a ship that Nuovo Pignone brought breach of contract
“[h]as its own shears and winches and hoisting and tort claims against Fagioli, Key Largo, and
means, including swingletrees and cables for the STORMAN ASIA and effected service of
safe, autonomous hoisting operations and/or process on Fagioli by sending the complaint
unloading in connection with the weight of the and summons by Federal Express mail to
objects to be transported . . . .” The contract Fagioli’s president in Milan, Italy. Fagioli
required that the ship be seaworthy, equipped moved unsuccessfully to dismiss for lack of
with appropriate engines for navigation, and personal jurisdiction and insufficiency of
process. The district court concluded that
personal jurisdiction could be established over
*
District Judge of the Northern District of Fagioli because the company had made
Texas, sitting by designation.
2
minimum contacts with Louisiana through its defendant on the same cause of action and the
contract with Nuovo Pignone, and that service exercise of jurisdiction comports with the Due
by mail of foreign parties is permissible under Process Clause. Adams v. Unione Mediter-
article 10(a) of the Hague Convention. In its ranea di Sicurta, 220 F.3d 659, 667 (5th Cir.
order denying the motion to dismiss, the dis- 2000). These two inquiries merge into one,
trict court, on Fagioli’s motion, certified both because Louisiana’s long-arm statute permits
grounds for interlocutory appeal under 28 jurisdiction coterminous with the scope of the
U.S.C. § 1292(b), and this court granted leave Due Process Clause. La. R.S. 13:3201(B);
to appeal as well. Growden v. Ed Bowlin & Assocs., 733 F.2d
1149, 1150 (5th Cir. 1984).
III.
We review de novo the district court’s de- In deciding whether personal jurisdiction is
termination that its exercise of personal consistent with the Due Process Clause, a
jurisdiction over a non-resident defendant is three-prong test is applied: (1) whether the
proper. Wilson v. Belin, 20 F.3d 644, 647-48 defendant has minimum contacts with the for-
(5th Cir. 1994). Where, as here, the district um state, i.e., whether it purposely directed its
court decides the motion to dismiss without activities toward the forum state or purposely
holding an evidentiary hearing, Nuovo Pignone availed itself of the privileges of conducting
must make only a prima facie showing of the activities there; (2) whether the plaintiff’s
facts on which jurisdiction is predicated. cause of action arises out of or results from the
Alpine View Co. v. Atlas Copco AB, 205 F.3d defendant’s forum-related contacts; and (3)
208, 215 (5th Cir. 2000). To decide whether whether the exercise of personal jurisdiction is
a prima facie case exists, we must accept as fair and reasonable. Burger King Corp. v.
true Nuovo Pignone’s “uncontroverted Rudzewicz, 471 U.S. 462, 474 (1985).1
allegations, and resolve in [its] favor all
conflicts between the facts contained in the A.
parties’ affidavits and other documentation.” A defendant establishes minimum contacts
Kelly v. Syria Shell Petroleum Dev. B.V., 213 with a state if “the defendant’s conduct and
F.3d 841, 854 (5th Cir. 2000) (quoting Alpine
View, 205 F.3d at 215).
1
Federal Rule of Civil Procedure 4(k)(2) per-
The Due Process Clause of the Fourteenth mits personal jurisdiction over foreign defendants
Amendment protects an individual’s liberty in- for claims arising under federal law where the de-
terest in not being subject to the binding fendant has sufficient contacts with the nation as a
whole, but insufficient contacts to satisfy the due
judgments of a forum with which he has es-
process concerns of the long-arm statute of any
tablished no meaningful “contacts, ties, or rela-
particular state. World Tanker Carriers Corp. v.
tions.” Int’l Shoe Co. v. Washington, 326 MV Ya Mawlaya, 99 F.3d 717, 720 (5th Cir.
U.S. 310, 319 (1945). In an admiralty case in 1996). In World Tanker, we held that rule 4(k)(2)
which the cause of action arises out of the de- is applicable to admiralty claims. Nevertheless,
fendant’s contact with Louisiana, a federal neither party nor the district court addressed the
court may exercise personal jurisdiction over issue of whether personal jurisdiction exists over
a foreign defendant if Louisiana could have Fagioli pursuant to rule 4(k)(2), so we will not
acquired personal jurisdiction over the discuss this possibility. See United States v. Thi-
bodeaux, 211 F.3d 910, 912 (5th Cir. 2000).
3
connection with the forum state are such that at 475.
[they] should reasonably anticipate being haled
into court there.” Burger King, 471 U.S. at Fagioli argues that the district court
474 (quoting World-Wide Volkswagen v. misconstrued its contractual obligations, which
Woodson, 444 U.S. 286, 297 (1980)). There it asserts did not require it to perform any part
must be some act whereby the defendant of the agreement in Louisiana.3 Fagioli claims
“purposely avails itself of the privilege of that it warranted only “that the ship had a
conducting activities within the forum state, crane of sufficient tonnage to lift the goods,
thus invoking the benefits and protections of not that the ship’s crane would be in proper
its laws.” Id. at 475. A nonresident “may per- working order throughout the transport and
missibly structure his primary conduct so as to unloading.” In other words, Fagioli claims
avoid being haled into court in a particular that its contractual obligations stopped on the
state.” World-Wide Volkswagen, 444 U.S. at shores of Italy.4 It relies on the fact that Key
297. Even where a defendant has no physical
presence in the forum state, a single purposeful
contact is sufficient to confer personal 2
(...continued)
jurisdiction if the cause of action arises from Fagioli could not have reasonably foreseen being
the contact. McGee v. Int’l Life Ins. Co., 355 haled into a Louisiana court. Here, by contrast,
U.S. 220, 222 (1957). Fagioli contracted with Nuovo Pignone to transport
the reactor specifically to Louisiana.
1. 3
We agree with the district court that Fagio- In arguing that it has insufficient contacts with
li’s agreement to supply a vessel equipped to Louisiana, Fagioli also relies on the fact that it is
neither authorized to conduct business in Lou-
allow for safe discharge of the reactor in Loui-
isiana, nor does it maintain an office or employees
siana constituted a sufficient forum-related
there. Certainly, these facts cut against permitting
contact to confer personal jurisdiction. By general jurisdiction over Fagioli. But Fagioli’s ar-
agreeing to secure a vessel with a satisfactory gument ignores the fact that personal jurisdiction
onboard loading crane that it knew would be may be established by either general jurisdiction or
used to unload cargo in Louisiana, Fagioli rea- specific jurisdiction. Alpine View, 205 F.3d at
sonably should have anticipated that its failure 215. Nuovo Pignone argues only for specific
to meet its contractual obligations might sub- jurisdiction. Burger King, 471 U.S. at 472 (stating
ject it to suit there. Fagioli cannot now claim that specific jurisdiction exists where the “litigation
that its contact with Louisiana was merely for- results from the alleged injuries that arise out of or
tuitous, random, or attenuated after it entered relate to” the defendant’s activities in the forum
into a contract specifying that state as the state) (internal quotations omitted).
point of destination.2 Burger King, 471 U.S. 4
Fagioli relies on Charia v. Cigarette Racing
Team, Inc., 583 F.2d 184 (5th Cir. 1978), in which
we found that a Florida boatbuilder who sent a
2
For example, suppose that Fagioli had agreed completed boat to Louisiana via a third party car-
to transport the reactor from Italy to Mexico, but rier had insufficient contacts with Louisiana to ef-
because of bad weather, the STORMAN ASIA un- fect personal jurisdiction. Id. at 189. Because
expectedly was forced to dock in the Port of New Charia dealt with jurisdiction over a boatbuilder,
Orleans, where the accident occurred. In that case, and not a carrier such as Fagioli whose line of bus-
(continued...) (continued...)
4
Largo and Nuovo Pignone’s client were the tertwining itself in a multi-layered contractual
parties responsible for unloading the reactor arrangement.6 Effectively, Fagioli argues that
when it arrived in Louisiana.5 because only third parties with which it
subcontracted were dockside when the
Fagioli’s argument that the district court accident occurred, personal jurisdiction is
misconstrued its contractual obligations is un- unwarranted. Personal jurisdiction is not
availing. Although Nuovo Pignone’s client defeated, however, merely because Fagioli
and Key Largo were responsible for unloading never set foot in Louisiana. Burger King, 471
the reactor, Fagioli was the party that agreed U.S. at 476. As a voluntary member of the
to provide a satisfactory onboard crane and ul- economic chain that brought the reactor to
timately to transport the reactor to Louisiana. Louisiana, Fagioli purposely has availed itself
Because we are required to accept Nuovo Pig- of the privilege of conducting business in that
none’s allegation that a defective onboard state.
crane was the cause of damage to the reactor
and barge, Fagioli cannot avoid personal jur- We have applied the stream-of-commerce
isdiction by speculating as to whether another principle to permit the assertion of personal
party was actually responsible for the accident. jurisdiction over nonresident defendants that
That question is left for a trial on the merits. send a defective product into a forum.7 Where
a nonresident’s contact with the forum state
2. “stems from a product, sold or manufactured
In a broader sense, Fagioli should not be by the foreign defendant, which has caused
permitted to escape personal jurisdiction by in- harm in the forum state, the court has
[specific] jurisdiction if it finds that the
defendant delivered the product into the
4
(...continued)
stream of commerce with the expectation that
iness requires that it regularly cross geographical it would be purchased or used by consumers in
boundaries, the case is inapposite. In any event, the forum state.” Bearry v. Beech Aircraft
Charia was decided before several important
Supreme Court cases, including World-Wide
6
Volkswagen, 444 U.S. 286, and Burger King, 471 See CompuServe, Inc. v. Patterson, 89 F.3d
U.S. 462, had been decided. 1257, 1266 (6th Cir. 1996) (stating that “it could
be unfair to allow individuals who purposefully en-
5
In its brief, Fagioli makes a passing reference gage in interstate activities for profit to escape
to the use of the incoterm “CFR” in the Nuovo having to account in other states for the proximate
Pignone-Fagioli contract. Incoterms are standard consequences of those activities”); Dakota Indus.
trade definitions used in international sales con- v. Ever Best Ltd., 28 F.3d 910, 915 (8th Cir. 1994)
tracts. E.g., Texful Textile Ltd. v. Cotton Exp. (“A seller in a distribution network that realizes
Textile, Inc., 891 F. Supp. 1381, 1388 n.6 (C.D. economic benefit from multiple sales in a distant
Cal. 1995). Importantly, incoterms are used only fora purposely avails itself to the fora states’
to allocate risk between buyers and sellers. Wil- jurisdiction.”).
liam V. Roth, Jr. & William V. Roth III,
7
Incoterms: Facilitating Trade in the Asian Pacific, E.g., Ruston Gas Turbines v. Donaldson, Co.,
18 U. PA. J. INT’L ECON. L. 731, 733 n.5 (1997). 9 F.3d 415, 420-21 (5th Cir. 1993); Bean Dredg-
They do not apply to contracts between merchants ing Corp. v. Dredge Tech. Corp., 744 F.2d 1081,
and carriers, such as those in this case. Id. 1083-84 (5th Cir. 1984).
5
Corp., 818 F.2d 370, 374 (5th Cir. 1987) tion exists, at least one member of the court
(citing World-Wide Volkswagen, 444 U.S. at has expressed concern that the public policy
298).8 concerns compelling the application of the
stream-of-commerce principle in products lia-
The stream-of-commerce principle is ap- bility cases are not present in contract cases,
plied to companies that, like Fagioli, where parties have direct contact and can
“purposefully serve markets broader than the structure their relationship in light of
states in which [their] initial or direct sales are jurisdictional considerations. See Gulf
made.” Petroleum Helicopters, Inc. v. Avco Consolidated Servs., Inc. v. Corinth Pipe-
Corp., 804 F.2d 1367, 1370 (5th Cir. 1987) works, S.A., 898 F.2d 1071, 1079 (5th Cir.
(en banc). Still, this court has been reluctant 1990) (Reavley, J., dissenting).
to extend the stream-of-commerce principle
outside the context of products liability cases. Nevertheless, in Gulf Consolidated, 898
Alpine View, 205 F.3d at 216. F.2d at 1073-74, we applied the stream-of-
commerce principle in a breach of warranty
Where we have been presented with the action. The defendant was a Greek distributor
opportunity to extend the principle to other that sent, to a Texas purchaser, defective
areas such as contract or copyright, we have oilfield casings that later were incorporated
found the defendant’s delivery of products into into pipe. Id. at 1072-74. In finding that the
the stream-of-commerce to be unrelated to the defendant should have foreseen the possibility
cause of action.9 Even where such a rela of being haled into a Texas court, we observed
that “[a]lthough the transaction . . . took place
in Greece, the defendant sold the pipe in
8 anticipation that it would be shipped to Texas
This court has taken a relatively expansive
aboard a ship it chartered.” Id. at 1074. We
view of the stream-of-commerce principle by re-
quiring only “mere foreseeability” that a defendant
found that Texas had an interest in providing
might be haled into court because it has purposely a forum for the litigation where “the product
availed itself of the privileges of conducting was intended for use in Texas, [and] where the
business in the home forum; we have not required defect surfaced in Texas.” Id.
that a defendant “purposely direct” its activities
toward the forum. Ruston Gas Turbines, 9 F.3d at Application of the stream-of-commerce
419 (citations omitted). principle is warranted here. The onboard
shipping crane, like the casings in Gulf
9
See Alpine View, 205 F.3d at 217 (declining to Consolidated, is alleged to have caused
apply stream-of-commerce principle because the damage in the home forum. Like defendants in
plaintiffs had “failed to make a prima facie products liability cases that utilize the stream-
showing that the litigation results from alleged
of-commerce principle, Faglioli did not
injuries that arise out of or relate to” defendant’s
contract with a citizen of the home forum, but
contacts with the forum) (internal quotation omit-
ted); Ham v. La Cienega Music Co., 4 F.3d 413, rather with third party intermediaries who
416 (5th Cir. 1993) (finding that defendant’s ac-
tivities, though connecting them to Texas within the
9
meaning of the stream-of-commerce principle, were (...continued)
insufficient to support jurisdiction given the “highly attenuated” relationship between the liti-
(continued...) gation and those activities).
6
brought the crane to Louisiana. Fagioli should overly burdensome and that Louisiana lacks
have considered the possible devastation that interest in hearing the suit.
its choice of a defective onboard crane might
cause in Louisiana. In this sense, the same In Asahi Metal Indus. Co. v. Superior
public policy concerns that justify use of the Court, 480 U.S. 102, 115 (1987), the Court
stream-of-commerce principle in the products noted that “[g]reat care and reserve should be
liability context are present here. exercised when extending our notions of per-
sonal jurisdiction into the international field.”
B. The Court was concerned with the “unique
We next turn briefly to whether Nuovo burdens placed upon one who must defend
Pignone’s claims arise out of Fagioli’s contacts oneself in a foreign legal system.” Id. at 114.
with Louisiana. Burger King, 471 U.S. at Fagioli does not present any reason why sub-
472. We have established that Fagioli directed jecting it to suit in Louisiana would be overly
its activities toward Louisiana by agreeing to burdensome. In fact, Fagioli presents itself as
transport the reactor to the Port of New a specialist in “worldwide transport and
Orleans. Nuovo Pignone alleges that the reac- logistics” that maintains offices in the United
tor was dropped as a direct result of Fagioli’s States.10
failure to provide a vessel with “safe
autonomous hoisting operations.” Therefore, As for Louisiana’s interest in adjudicating a
Nuovo Pignone’s claims necessarily arise out dispute between two Italian companies, the
of Fagioli’s contact with Louisiana. district court correctly concluded that
“Louisiana has an interest in redressing the
C. injury based on the failure of the equipment in
Once a plaintiff establishes minimum con- unloading the reactor in New Orleans.”11 Al-
tacts between the defendant and the forum though in Asahi, the Court questioned
state, the burden of proof shifts to the California’s interest in maintaining an in-
defendant to show that the assertion of demnification suit between two foreign parties,
jurisdiction is unfair and unreasonable. Wien 480 U.S. at 115, here Nuovo Pignone alleges
Air Alaska, Inc. v. Brandt, 195 F.3d 208, 215 that damage to the reactor was caused by
(5th Cir. 1999). The defendant must make a Fagioli’s “negligence, fault, breach of duty, or
“compelling case.” Burger King, 471 U.S. at breach of contract or warranty.” Unlike the
477. In determining whether the exercise of situation in Asahi, where the underlying tor-
jurisdiction is fair and reasonable, we look to
(1) the burden on the nonresident defendant;
(2) t he interests of the forum state; (3) the 10
plaintiff’s interest in obtaining relief; (4) the See Access Telecom, Inc. v. MCI Telecomm.
Corp., 197 F.3d 694, 716 (5th Cir. 1999) (re-
interstate judicial system’s interest in the most
jecting Mexican company’s claim that subjecting it
efficient resolution of controversies; and (5) to suit in the United States would be overly bur-
the shared interests of the several states in densome where the company had engaged in “nu-
furthering fundamental social policies. Felch merous business dealings in the United States”).
v. Transportes Lar-Mex SA de CV, 92 F.3d
320, 324 (5th Cir. 1996). Fagioli argues only 11
See Petroleum Helicopters, 804 F.2d at 1371
that subjecting it to suit in Louisiana would be (noting that the “location of the accident affects
Louisiana’s interest in adjudicating the dispute”).
7
tious conduct giving rise to an indemnification receiving nations who, in turn, effect service
claim occurred in Japan and the Republic of on the proper parties.13
China, this case is one in which the plaintiff
alleges the commission of a tort within the The parties disagree over the interpretation
forum. Louisiana undoubtedly has an interest of article 10(a), which states in context:
in ensuring the safety of its waterways.
Provided the State of designation does
IV. not object, the present Convention does
Nuovo Pignone effected service of process not interfere with
by sending a copy of the complaint by Federal
Express mail to Fagioli’s president in Milan, (a) the freedom to send judicial
Italy. Fagioli argues that service by mail vio- documents, by postal channels, directly
lates FED. R. CIV. P. 4(f)(1), which permits to persons abroad,
service of process on a foreign corporation “by
any internationally agreed means reasonably (b) the freedom of judicial officers, of-
calculated to give notice, such as those means ficials or other competent persons of the
authorized by the Hague Convention.” The State of origin to effect service of
Hague Convention is a multinational treaty judicial documents directly through the
formed in 1965 for the purpose of creating an judicial officers, officials or other
“appropriate means to ensure that judicial and competent persons of the State of
extrajudicial documents to be served abroad designation,
shall be brought to the notice of the addressee
in sufficient time.”12 The treaty seeks not only (c) the freedom of any person interested
to simplify and expedite international service in a judicial proceeding to effect service
of process, but more importantly, to ensure of judicial documents directly through
that service is effected timely and adequately. the judicial officers, officials, or other
competent persons of the State of
The Hague Convention sets forth destination.
permissible methods of effecting service.
Articles 2 through 7 require each signatory Nuovo Pignone contends that article 10(a)
nation to establish a “Central Authority” to act permits service of process by mail. Fagioli
as an agent to receive request of service, argues that the subsection refers only to the
arrange for service of documents, and return transmission of legal documents following ser-
proofs of service. Article 8 permits the use of vice, pointing to the fact that nowhere else in
diplomatic agents to serve foreign defendants. the Hague Convention is the word “send” used
Article 9 permits diplomatic agents to forward to refer to service of process; rather, the
documents to designated authorities in drafters use the words “serve,” “service,” and
“to effect service” in other sections, including
subparts (b) and (c) of article 10.
12
Convention on Service Abroad of Judicial and
Extrajudicial Documents in Civil and Commercial
13
Matters, Nov. 15, 1965, 20 U.S.T. 361, 362 In addition, Article 11 allows two signatories
T.I.A.S. No. 6638, reprinted in 28 U.S.C.A. FED. to agree to other methods not specified in the
R. CIV. P. 4, note, at 210 (1992). Convention.
8
The parties’ differing positions reflect a cir- We adopt the reasoning of courts that have
cuit split over an issue this court has yet to decided that the Hague Convention does not
address. Those courts that have concluded permit service by mail. In doing so, we rely on
that article 10(a) permits service of foreign the canons of statutory interpretation rather
parties by mail have looked to the broad pur- than the fickle presumption that the drafters’
pose of the Hague ConventionSSfacilitating use of the word “send” was a mere oversight.
service abroadSSand concluded that article “Absent a clearly expressed legislative
10(a) would be “superfluous unless it was intention to the contrary,” a statute’s language
related to the sending of such documents for “must ordinarily be regarded as conclusive.”
the purpose of service.”14 These courts have Consumer Prod. Safety Comm’n v. GTE
opined that the use of the term send, rather Sylvania, Inc., 447 U.S. 102, 108 (1980).
than service, in article 10(a) should be And because the drafters purposely elected to
attributed to careless drafting. use forms of the word “service” throughout
the Hague Convention, while confining use of
Other courts have held that the word the word “send” to article 10(a), we will not
“send” in article 10(a) is not the equivalent of presume that the drafters intended to give the
service of process.15 These courts have same meaning to “send” that they intended to
interpreted article 10(a) as providing a method give to “service.”16
for sending subsequent documents after
service of process has properly been obtained. Nuovo Pignone’s contention that the broad
Despite the broad purpose of the Hague purpose of the Hague Convention is furthered
Convention, these courts have noted that the if article 10(a) is interpreted to allow service
word “service” is used in other sections of the by mail is problematic. As noted, the purpose
Hague Convention, including subparts (b) and of the Hague Convention is not only to
(c) of article 10 and articles 9, 15, and 16, simplify the service of process, but to ensure
which all refer to forwarding documents for that plaintiffs deliver notice to foreign
the purpose of service. So, if the drafters had addressees in sufficient time to defend the
meant for article 10(a) to provide an additional allegation. Indeed, FED. R. CIV. P. 4(f)(1)
manner of service of judicial documents, they presumes that the Hague Convention provides
would have used “service” instead of “send.” methods of service “reasonably calculated to
give notice.”
14
Ackermann v. Levine, 788 F.2d 830, 839 (2d We are not confident, nor should the
Cir. 1986) (quoting Shoei Kako v. Superior Court, drafters have been confident in 1967, that mail
33 Cal. App. 3d 808, 109 Cal. Rptr. 402 (1973)); service in the more than forty signatories is
see also Koehler v. Dodwell, 152 F.3d 304, 307-
08 (4th Cir. 1998); Smith v. Dainichi Kinzoku
Kogyo Co., 680 F. Supp. 847, 850 (W.D. Tex.
16
1998). In Russello v. United States, 464 U.S. 16, 23
(1983), the Court noted that where a legislative
15
Bankston v. Toyota Motor Corp., 889 F.2d body “includes particular language in one section
172, 173-74 (8th Cir. 1989); see also Postal v. of a statute but omits it in another section of the
Princess Cruises, Inc., 163 F.R.D. 497, 500 (N.D. same Act, it is generally presumed that the [leg-
Tex. 1995); Pennebaker v. Kawasaki Motors islative body] acts intentionally and purposely in
Corp., 155 F.R.D. 153, 157 (S.D. Miss. 1994). the disparate inclusion or exclusion.”
9
sufficient to ensure this goal.17 Under Nuovo
Pignone’s interpretation of article 10(a), the
fact that a signatory could object to service by
mail is unconvincing. There is no reason to
think that signatories with inadequate mail
services would voluntarily opt out of article
10(a).
Finally, we note that other provisions of the
Hague Convention describe more reliable me-
thods of effecting service. Service of process
through a central authority under articles 2
through 7 and service through diplomatic
channels under articles 8 and 9 require that
service be effected through official government
channels. It is unlikely that the drafters would
have put in place these methods of service
requiring the direct participation of
government officials, while simultaneously
permitting the uncertainties of service by mail.
We conclude that article 10(a) does not
permit parties to effect service of process on
foreign defendants by mail. On remand, Nuo-
vo Pignone should be permitted a reasonable
time to effect service properly. Jim Fox
Enter., Inc. v. Air France, 664 F.2d 63, 65
(5th Cir. Dec. 1981).
For the reasons we have explained, the dis-
trict court’s assertion of personal jurisdiction
over Fagioli is AFFIRMED, and its
determination that service of process by mail is
permissible under the Hague Convention is
REVERSED. This matter is REMANDED for
further proceedings.
17
Indeed, the advisory committee notes to the
1963 amendments to FED. R. CIV. P. 4 recognize
that “[s]ervice of process beyond the territorial
limits of the United States may involve difficulties
not encountered in the case of domestic service.”
10