Boeing 737

The case of the day is PATS Aircraft, LLC v. Vedder Munich GmbH (D. Del. 2016). PATS had a contract with a customer for modification of a Boeing 737 jet. PATS subcontracted the interior work to Vedder’s predecessor in interest, Loher Raumexklusiv GmbH. The parties ended up in a contract dispute. Vedder brought a declaratory judgment action in Germany, while PATS brought an action for breach of contract and breach of warranty in Delaware. Vedder moved to dismiss for insufficient service of process.

The German Central Authority’s Article 6 certificate indicated that service was made in accordance with German law under the first subparagraph of Article 5. Vedder nevertheless objected to service, arguing that the documents were in English (no German translation was served). The court correctly noted that the absence of a translation was problematic. The German declarations reads: “Formal service (paragraph 1 of Article 5 of the Convention) shall be permissible only if the document to be served is written in, or translated into, the German language.” But PATS had not requested service under subparagraph 1, but rather under subparagraph 2, “by delivery to the addressee, if he accepts it voluntarily.” It’s agreed that in cases of informal service by these means, a translation is not necessary. The court held that service was improper because of the absence of the translation.

This is not an easy case. On the one hand, a translation is required for service under Article 5(1). But on the other hand, PATS hadn’t requested under Article 5(1), and the German Central Authority evidently thought the service was effective—long-time readers know I don’t think US courts should lightly look behind an Article 6 certificate, which shows, prima facie, that service was proper. I probably would be inclined to rule the other way, but it’s not really clear that the judge got this wrong.

It appears that there was litigation ongoing in Germany about the sufficiency of the service of process. The judge asked the parties to inform him of the outcome. Another blast from the past for long-time readers: I understand that in places such as Germany or Mexico, there can be litigation about whether a central authority should execute a request for service. But once the central authority has executed a request, I don’t see why a later decision by the German (or Mexican, etc.) court should cause a US court to disregard an Article 6 certificate, at least as long as there is no dispute that the defendant had actual notice.