Case of the Day: Richardson v. Attorney General of the BVI
Posted on August 30, 2013
The case of the day is Richardson v. Attorney General of the British Virgin Islands (D.V.I. 2013). Meaghan and Cyril Richardson were passengers on a powerboat that was stopped by a BVI customs official, who claimed that they were in BVI waters (the Richardsons claimed they were in US waters) and ordered them to leave their vessel and board his. They claim that the customs official operated the boat unsafely and that they suffered injuries. They sued the official, Randy Donovan, in his individual capacity, and the Attorney General of the BVI in his official capacity.
The Richardsons sought a default judgment when the BVI failed to appear. The judge held that the BVI was a political subdivision of the United Kingdom and therefore had to be served with process under 28 U.S.C. § 1608(a). There was no special arrangement for service of process under § 1608(a)(1). Rather than serving process through the BVI central authority under the Hague Service Convention, the Richardsons hired a process server, who personally served the documents on a clerk at the BVI Attorney General’s office. The judge held that this service did not comply with § 1608(a)(2), which requires “delivery of a copy of the summons and complaint in accordance with an applicable international convention on service of judicial documents.”
This seems basically right. Surely the best thing to do when serving a foreign sovereign under § 1608(a)(2) is to seek to make service via the foreign central authority. But what about Article 10? Does the statute permit service by one of the methods permitted by Article 10, namely service by postal channels, service by direct transmission between competent persons of the two states, and service by an interested person through the competent persons of the state of destination. Now, it may be that this is not a good case to test the question: it’s not clear that the process server was a competent person to effect service in the BVI, or that the service was consistent with the UK’s declarations under Article 10. But in principle, can you comply with § 1608(a)(2) by serving documents by postal channels?
I am not sure there is a clear answer in the cases. Perhaps courts will differ on this question depending on whether they hold (like the Ninth Circuit) that the Hague Service Convention permits but does not itself authorize service by the methods of Article 10, or whether on the other hand they hold (like the Second Circuit) that the Convention does affirmative authorize service by those methods.