Case of the Day: Seaboard Marine v. Magnum Freight
Posted on August 2, 2017
The case of the day is Seaboard Marine Ltd. v. Magnum Freight Corp. (S.D. Fla. 2017). Seaboard sought leave to serve process on two defendants, CVG Aluminos and Terminales, in Costa Rica, by mail, and to submit the return receipt as proof of service.
Costa Rica is a new party to the Hague Service Convention, and it has not objected to service by mail. The judge had good instincts, but I think his discussion was problematic, especially in light of Water Splash. Here is what he said:
Federal Rule of Civil Procedure 4(h)(2) authorizes service on a foreign corporation under the methods set forth in Rule 4(f) for individuals. Rule 4(f)(1), in turn, provides that an individual may be served outside of the United States “by an internationally agreed means of service that is reasonably calculated to give notice, such as those authorized by the Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents.” Article 10(a) of the Hague Convention provides that the ‘Convention shall not interfere with the freedom to send judicial documents, by postal channels, directly to persons abroad,’ provided that the destination country does not object. The documents attached to Seaboard’s motion seem to show that Costa Rica is a contracting party of the Hague Convention, and has not objected to Article 10(a), rendering service via postal channels an apparently valid method of service in Costa Rica. As several other judges in this district have … recognized, where the destination country does not object, service to individuals abroad can be made via postal channel (such as international mail) under Federal Rule of Civil Procedure 4(f)(1). Thus, to the extent Seaboard seeks to serve CVG Aluminos and Terminales in compliance with Rule 4(f)(1), authorization from the Court is not necessary.
The problem is that FRCP 4(f)(1) refers to the means of service authorized by the Convention, and we know from Water Splash that the Convention does not authorize service by mail: it merely permits it if there is a basis for it in the law of the forum. On the other hand, you don’t need leave to serve process by mail, but only if you follow the procedures in FRCP 4(f)(2)(C)(ii), i.e., if the clerk addresses and mails the documents. So the better approach would have been to say, as the judge did, that no leave was required, but not because of FRCP 4(f)(1), but because of FRCP 4(f)(2)(C)(ii). The practical difference: you can’t mail the documents yourself; you need to go through the clerk (or else find cases in your district that say that plaintiffs can act as agent of the clerk).