Case of the Day: Mitchell v. Volkswagen Group of America
Posted on May 17, 2011
The case of the day, Mitchell v. Volkswagen Group of Am., Inc. (N.D. Ga. 2010), shows the importance of checking the text of reservations to the Hague Conventions in their original language rather than relying on the English translation on the Hague Conference website. The claim was for product liability that resulted in the death of the plaintiff’s son. Mitchell attempted to make service on Volkswagen AG (the German parent) and Volkswagen de Mexico S.A. de C.V. in two ways: (1) by service on the registered agent of Volkswagen’s American subsidiary, and (2) by personal service on the American subsidiary’s manager of port operations. She also sought to serve Volkswagen Mexico by sending an untranslated copy of the papers to its office in Mexico via Fedex.
Most of the decision is routine—service on the subsidiary’s registered agent, and on the subsidiary’s manager, were insufficient because VW had not authorized the subsidiary to accept service of process and there was no basis for an alter ego claim. The most interesting part of the decision is the discussion of Mexico’s reservation under Article 10 of the Convention, which, according to the Hague Conference website reads as follows:
In relation to Article 10, the United Mexican States are opposed to the direct service of documents through diplomatic or consular agents to persons in Mexican territory according to the procedures described in sub-paragraphs a), b), and c), unless the judicial authority exceptionally grants the simplification different from the national regulations and provided that such a procedure does not contravene public law or violate individual guarantees. The request must contain the description of the formalities whose application is required to effect service of the document.
According to the court, the original Spanish version reads as follows:
En relacion con el articulo 10, los Estados Unidos Mexicanos no reconocen la facultad de remitir directamente los documentos judicales a las personas que se encuentren en su territorio conforme a los procedimientos previstos en los incisos a), b) y c) …
The difference is that the original, Spanish version of the reservation is not limited to service through the diplomatic or consular channels, but reaches all of the methods of service under Article 10, including service by postal channels. The court cited Todok v. Union State Bank of Harvard, Neb., 281 U.S. 449 (1930), for the proposition that the original language of a treaty (and, presumably, a reservation made under a treaty) controls over the English translation. Therefore, the attempt at service by postal channels in Mexico was ineffective.