Nuovo Pignone S P A v. Storman Asia MV

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

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Before SMITH and BENAVIDES, Circuit
Judges, and FITZWATER,* District Judge.
JERRY E. SMITH, Circuit Judge:
Fagioli, S.A. (“Faglioli”), agreed to furnish
a ship for the maritime transport of Nuovo
Pignone, SpA’s (“Nuovo Pignone’s”) 771,000
kilogram reactor from Italy to Louisiana. The
reactor was damaged after arrival at the Port
of New Orleans, and Nuovo Pignone sued.
The district court found that Fagioli, an Italian
company, was subject to personal jurisdiction
in Louisiana and that Nuovo Pignone properly
had effected service of process by mail. We
affirm the assertion of personal jurisdiction but
reverse the determination that article 10(a) of
the Hague Convention permits service of
process by mail.
I.
Fagioli is an Italian corporation providing
worldwide transportation and logistical servic-
es necessary to transport heavy-lift cargo. Nu-
ovo Pignone, also an Italian company, con-
tracted with Fagioli for the transport of a large
EO reactor from Italy to Louisiana. Under the
terms of the contract, Fagioli was responsible
for selecting a vessel for the transit.
The contract required that Fagioli furnish a
ship possessing specified performance capabili-
ties. Fagioli agreed to furnish a ship that
“[h]as its own shears and winches and hoisting
means, including swingletrees and cables for
safe, autonomous hoisting operations and/or
unloading in connection with the weight of the
objects to be transported . . . .” The contract
required that the ship be seaworthy, equipped
with appropriate engines for navigation, and
capable of entering the pre-selected port of
discharge.
Fagioli entered into a secondary contract
with Blau Shipping & Trading, Ltd. (“Blau
Shipping”). This contract, known as a con-
linebooking note, specified that the vessel M/V
STORMAN ASIA (“STORMAN ASIA”)
would be used to transport the reactor and that
Geismar or New Orleans was the port of
discharge. Blau Shipping then entered into a
secondary conlinebooking note with Key Lar-
go Transportes Maritimos (“Key Largo”), the
owner and operator of the STORMAN ASIA.
Nuovo Pignone’s Louisiana client and Key
Largo were responsible for unloading the
reactor at the point of destination.
The reactor was loaded on board the
STORMAN ASIA in Italy and transported
across the Atlantic Ocean without incident.
While the reactor was being transferred to a
barge at the Port of New Orleans, one of the
cables of the vessel’s onboard shipping crane
broke, causing the reactor to fall. The reactor
and the deck of the barge were damaged. Nu-
ovo Pignone alleges that the accident resulted
from Fagioli’s failure to provide a vessel with
a satisfactory onboard shipping crane, as re-
quired by the original contract.
II.
Nuovo Pignone brought breach of contract
and tort claims against Fagioli, Key Largo, and
the STORMAN ASIA and effected service of
process on Fagioli by sending the complaint
and summons by Federal Express mail to
Fagioli’s president in Milan, Italy. Fagioli
moved unsuccessfully to dismiss for lack of
personal jurisdiction and insufficiency of
process. The district court concluded that
personal jurisdiction could be established over
Fagioli because the company had made * District Judge of the Northern District of
Texas, sitting by designation.

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3
minimum contacts with Louisiana through its
contract with Nuovo Pignone, and that service
by mail of foreign parties is permissible under
article 10(a) of the Hague Convention. In its
order denying the motion to dismiss, the dis-
trict court, on Fagioli’s motion, certified both
grounds for interlocutory appeal under 28
U.S.C. § 1292(b), and this court granted leave
to appeal as well.
III.
We review de novo the district court’s de-
termination that its exercise of personal
jurisdiction over a non-resident defendant is
proper. Wilson v. Belin, 20 F.3d 644, 647-48
(5th Cir. 1994). Where, as here, the district
court decides the motion to dismiss without
holding an evidentiary hearing, Nuovo Pignone
must make only a prima facie showing of the
facts on which jurisdiction is predicated.
Alpine View Co. v. Atlas Copco AB, 205 F.3d
208, 215 (5th Cir. 2000). To decide whether
a prima facie case exists, we must accept as
true Nuovo Pignone’s “uncontroverted
allegations, and resolve in [its] favor all
conflicts between the facts contained in the
parties’ affidavits and other documentation.”
Kelly v. Syria Shell Petroleum Dev. B.V., 213
F.3d 841, 854 (5th Cir. 2000) (quoting Alpine
View, 205 F.3d at 215).
The Due Process Clause of the Fourteenth
Amendment protects an individual’s liberty in-
terest in not being subject to the binding
judgments of a forum with which he has es-
tablished no meaningful “contacts, ties, or rela-
tions.” Int’l Shoe Co. v. Washington, 326
U.S. 310, 319 (1945). In an admiralty case in
which the cause of action arises out of the de-
fendant’s contact with Louisiana, a federal
court may exercise personal jurisdiction over
a foreign defendant if Louisiana could have
acquired personal jurisdiction over the
defendant on the same cause of action and the
exercise of jurisdiction comports with the Due
Process Clause. Adams v. Unione Mediter-
ranea di Sicurta, 220 F.3d 659, 667 (5th Cir.
2000). These two inquiries merge into one,
because Louisiana’s long-arm statute permits
jurisdiction coterminous with the scope of the
Due Process Clause. La. R.S. 13:3201(B);
Growden v. Ed Bowlin & Assocs., 733 F.2d
1149, 1150 (5th Cir. 1984).
In deciding whether personal jurisdiction is
consistent with the Due Process Clause, a
three-prong test is applied: (1) whether the
defendant has minimum contacts with the for-
um state, i.e., whether it purposely directed its
activities toward the forum state or purposely
availed itself of the privileges of conducting
activities there; (2) whether the plaintiff’s
cause of action arises out of or results from the
defendant’s forum-related contacts; and (3)
whether the exercise of personal jurisdiction is
fair and reasonable. Burger King Corp. v.
Rudzewicz, 471 U.S. 462, 474 (1985).1
A.
A defendant establishes minimum contacts
with a state if “the defendant’s conduct and
1 Federal Rule of Civil Procedure 4(k)(2) per-
mits personal jurisdiction over foreign defendants
for claims arising under federal law where the de-
fendant has sufficient contacts with the nation as a
whole, but insufficient contacts to satisfy the due
process concerns of the long-arm statute of any
particular state. World Tanker Carriers Corp. v.
MV Ya Mawlaya, 99 F.3d 717, 720 (5th Cir.
1996). In World Tanker, we held that rule 4(k)(2)
is applicable to admiralty claims. Nevertheless,
neither party nor the district court addressed the
issue of whether personal jurisdiction exists over
Fagioli pursuant to rule 4(k)(2), so we will not
discuss this possibility. See United States v. Thi-
bodeaux, 211 F.3d 910, 912 (5th Cir. 2000).

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4
connection with the forum state are such that
[they] should reasonably anticipate being haled
into court there.” Burger King, 471 U.S. at
474 (quoting World-Wide Volkswagen v.
Woodson, 444 U.S. 286, 297 (1980)). There
must be some act whereby the defendant
“purposely avails itself of the privilege of
conducting activities within the forum state,
thus invoking the benefits and protections of
its laws.” Id. at 475. A nonresident “may per-
missibly structure his primary conduct so as to
avoid being haled into court in a particular
state.” World-Wide Volkswagen, 444 U.S. at
297. Even where a defendant has no physical
presence in the forum state, a single purposeful
contact is sufficient to confer personal
jurisdiction if the cause of action arises from
the contact. McGee v. Int’l Life Ins. Co., 355
U.S. 220, 222 (1957).
1.
We agree with the district court that Fagio-
li’s agreement to supply a vessel equipped to
allow for safe discharge of the reactor in Loui-
siana constituted a sufficient forum-related
contact to confer personal jurisdiction. By
agreeing to secure a vessel with a satisfactory
onboard loading crane that it knew would be
used to unload cargo in Louisiana, Fagioli rea-
sonably should have anticipated that its failure
to meet its contractual obligations might sub-
ject it to suit there. Fagioli cannot now claim
that its contact with Louisiana was merely for-
tuitous, random, or attenuated after it entered
into a contract specifying that state as the
point of destination.2 Burger King, 471 U.S.
at 475.
Fagioli argues that the district court
misconstrued its contractual obligations, which
it asserts did not require it to perform any part
of the agreement in Louisiana.3 Fagioli claims
that it warranted only “that the ship had a
crane of sufficient tonnage to lift the goods,
not that the ship’s crane would be in proper
working order throughout the transport and
unloading.” In other words, Fagioli claims
that its contractual obligations stopped on the
shores of Italy.4 It relies on the fact that Key
2 For example, suppose that Fagioli had agreed
to transport the reactor from Italy to Mexico, but
because of bad weather, the STORMAN ASIA un-
expectedly was forced to dock in the Port of New
Orleans, where the accident occurred. In that case,
(continued...)
2(...continued)
Fagioli could not have reasonably foreseen being
haled into a Louisiana court. Here, by contrast,
Fagioli contracted with Nuovo Pignone to transport
the reactor specifically to Louisiana.
3 In arguing that it has insufficient contacts with
Louisiana, Fagioli also relies on the fact that it is
neither authorized to conduct business in Lou-
isiana, nor does it maintain an office or employees
there. Certainly, these facts cut against permitting
general jurisdiction over Fagioli. But Fagioli’s ar-
gument ignores the fact that personal jurisdiction
may be established by either general jurisdiction or
specific jurisdiction. Alpine View, 205 F.3d at
215. Nuovo Pignone argues only for specific
jurisdiction. Burger King, 471 U.S. at 472 (stating
that specific jurisdiction exists where the “litigation
results from the alleged injuries that arise out of or
relate to” the defendant’s activities in the forum
state) (internal quotations omitted).
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
completed boat to Louisiana via a third party car-
rier had insufficient contacts with Louisiana to ef-
fect personal jurisdiction. Id. at 189. Because
Charia dealt with jurisdiction over a boatbuilder,
and not a carrier such as Fagioli whose line of bus-
(continued...)

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5
Largo and Nuovo Pignone’s client were the
parties responsible for unloading the reactor
when it arrived in Louisiana.5
Fagioli’s argument that the district court
misconstrued its contractual obligations is un-
availing. Although Nuovo Pignone’s client
and Key Largo were responsible for unloading
the reactor, Fagioli was the party that agreed
to provide a satisfactory onboard crane and ul-
timately to transport the reactor to Louisiana.
Because we are required to accept Nuovo Pig-
none’s allegation that a defective onboard
crane was the cause of damage to the reactor
and barge, Fagioli cannot avoid personal jur-
isdiction by speculating as to whether another
party was actually responsible for the accident.
That question is left for a trial on the merits.
2.
In a broader sense, Fagioli should not be
permitted to escape personal jurisdiction by in-
tertwining itself in a multi-layered contractual
arrangement.6 Effectively, Fagioli argues that
because only third parties with which it
subcontracted were dockside when the
accident occurred, personal jurisdiction is
unwarranted. Personal jurisdiction is not
defeated, however, merely because Fagioli
never set foot in Louisiana. Burger King, 471
U.S. at 476. As a voluntary member of the
economic chain that brought the reactor to
Louisiana, Fagioli purposely has availed itself
of the privilege of conducting business in that
state.
We have applied the stream-of-commerce
principle to permit the assertion of personal
jurisdiction over nonresident defendants that
send a defective product into a forum.7 Where
a nonresident’s contact with the forum state
“stems from a product, sold or manufactured
by the foreign defendant, which has caused
harm in the forum state, the court has
[specific] jurisdiction if it finds that the
defendant delivered the product into the
stream of commerce with the expectation that
it would be purchased or used by consumers in
the forum state.” Bearry v. Beech Aircraft
4(...continued)
iness requires that it regularly cross geographical
boundaries, the case is inapposite. In any event,
Charia was decided before several important
Supreme Court cases, including World-Wide
Volkswagen, 444 U.S. 286, and Burger King, 471
U.S. 462, had been decided.
5 In its brief, Fagioli makes a passing reference
to the use of the incoterm “CFR” in the Nuovo
Pignone-Fagioli contract. Incoterms are standard
trade definitions used in international sales con-
tracts. E.g., Texful Textile Ltd. v. Cotton Exp.
Textile, Inc., 891 F. Supp. 1381, 1388 n.6 (C.D.
Cal. 1995). Importantly, incoterms are used only
to allocate risk between buyers and sellers. Wil-
liam V. Roth, Jr. & William V. Roth III,
Incoterms: Facilitating Trade in the Asian Pacific,
18 U. PA. J. INT’L ECON. L. 731, 733 n.5 (1997).
They do not apply to contracts between merchants
and carriers, such as those in this case. Id.
6 See CompuServe, Inc. v. Patterson, 89 F.3d
1257, 1266 (6th Cir. 1996) (stating that “it could
be unfair to allow individuals who purposefully en-
gage in interstate activities for profit to escape
having to account in other states for the proximate
consequences of those activities”); Dakota Indus.
v. Ever Best Ltd., 28 F.3d 910, 915 (8th Cir. 1994)
(“A seller in a distribution network that realizes
economic benefit from multiple sales in a distant
fora purposely avails itself to the fora states’
jurisdiction.”).
7 E.g., Ruston Gas Turbines v. Donaldson, Co.,
9 F.3d 415, 420-21 (5th Cir. 1993); Bean Dredg-
ing Corp. v. Dredge Tech. Corp., 744 F.2d 1081,
1083-84 (5th Cir. 1984).

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6
Corp., 818 F.2d 370, 374 (5th Cir. 1987)
(citing World-Wide Volkswagen, 444 U.S. at
298).8
The stream-of-commerce principle is ap-
plied to companies that, like Fagioli,
“purposefully serve markets broader than the
states in which [their] initial or direct sales are
made.” Petroleum Helicopters, Inc. v. Avco
Corp., 804 F.2d 1367, 1370 (5th Cir. 1987)
(en banc). Still, this court has been reluctant
to extend the stream-of-commerce principle
outside the context of products liability cases.
Alpine View, 205 F.3d at 216.
Where we have been presented with the
opportunity to extend the principle to other
areas such as contract or copyright, we have
found the defendant’s delivery of products into
the stream-of-commerce to be unrelated to the
cause of action.9 Even where such a rela
tion exists, at least one member of the court
has expressed concern that the public policy
concerns compelling the application of the
stream-of-commerce principle in products lia-
bility cases are not present in contract cases,
where parties have direct contact and can
structure their relationship in light of
jurisdictional considerations. See Gulf
Consolidated Servs., Inc. v. Corinth Pipe-
works, S.A., 898 F.2d 1071, 1079 (5th Cir.
1990) (Reavley, J., dissenting).
Nevertheless, in Gulf Consolidated, 898
F.2d at 1073-74, we applied the stream-of-
commerce principle in a breach of warranty
action. The defendant was a Greek distributor
that sent, to a Texas purchaser, defective
oilfield casings that later were incorporated
into pipe. Id. at 1072-74. In finding that the
defendant should have foreseen the possibility
of being haled into a Texas court, we observed
that “[a]lthough the transaction . . . took place
in Greece, the defendant sold the pipe in
anticipation that it would be shipped to Texas
aboard a ship it chartered.” Id. at 1074. We
found that Texas had an interest in providing
a forum for the litigation where “the product
was intended for use in Texas, [and] where the
defect surfaced in Texas.” Id.
Application of the stream-of-commerce
principle is warranted here. The onboard
shipping crane, like the casings in Gulf
Consolidated, is alleged to have caused
damage in the home forum. Like defendants in
products liability cases that utilize the stream-
of-commerce principle, Faglioli did not
contract with a citizen of the home forum, but
rather with third party intermediaries who
8 This court has taken a relatively expansive
view of the stream-of-commerce principle by re-
quiring only “mere foreseeability” that a defendant
might be haled into court because it has purposely
availed itself of the privileges of conducting
business in the home forum; we have not required
that a defendant “purposely direct” its activities
toward the forum. Ruston Gas Turbines, 9 F.3d at
419 (citations omitted).
9 See Alpine View, 205 F.3d at 217 (declining to
apply stream-of-commerce principle because the
plaintiffs had “failed to make a prima facie
showing that the litigation results from alleged
injuries that arise out of or relate to” defendant’s
contacts with the forum) (internal quotation omit-
ted); Ham v. La Cienega Music Co., 4 F.3d 413,
416 (5th Cir. 1993) (finding that defendant’s ac-
tivities, though connecting them to Texas within the
meaning of the stream-of-commerce principle, were
insufficient to support jurisdiction given the
(continued...)
9(...continued)
“highly attenuated” relationship between the liti-
gation and those activities).

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7
brought the crane to Louisiana. Fagioli should
have considered the possible devastation that
its choice of a defective onboard crane might
cause in Louisiana. In this sense, the same
public policy concerns that justify use of the
stream-of-commerce principle in the products
liability context are present here.
B.
We next turn briefly to whether Nuovo
Pignone’s claims arise out of Fagioli’s contacts
with Louisiana. Burger King, 471 U.S. at
472. We have established that Fagioli directed
its activities toward Louisiana by agreeing to
transport the reactor to the Port of New
Orleans. Nuovo Pignone alleges that the reac-
tor was dropped as a direct result of Fagioli’s
failure to provide a vessel with “safe
autonomous hoisting operations.” Therefore,
Nuovo Pignone’s claims necessarily arise out
of Fagioli’s contact with Louisiana.
C.
Once a plaintiff establishes minimum con-
tacts between the defendant and the forum
state, the burden of proof shifts to the
defendant to show that the assertion of
jurisdiction is unfair and unreasonable. Wien
Air Alaska, Inc. v. Brandt, 195 F.3d 208, 215
(5th Cir. 1999). The defendant must make a
“compelling case.” Burger King, 471 U.S. at
477. In determining whether the exercise of
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
plaintiff’s interest in obtaining relief; (4) the
interstate judicial system’s interest in the most
efficient resolution of controversies; and (5)
the shared interests of the several states in
furthering fundamental social policies. Felch
v. Transportes Lar-Mex SA de CV, 92 F.3d
320, 324 (5th Cir. 1996). Fagioli argues only
that subjecting it to suit in Louisiana would be
overly burdensome and that Louisiana lacks
interest in hearing the suit.
In Asahi Metal Indus. Co. v. Superior
Court, 480 U.S. 102, 115 (1987), the Court
noted that “[g]reat care and reserve should be
exercised when extending our notions of per-
sonal jurisdiction into the international field.”
The Court was concerned with the “unique
burdens placed upon one who must defend
oneself in a foreign legal system.” Id. at 114.
Fagioli does not present any reason why sub-
jecting it to suit in Louisiana would be overly
burdensome. In fact, Fagioli presents itself as
a specialist in “worldwide transport and
logistics” that maintains offices in the United
States.10
As for Louisiana’s interest in adjudicating a
dispute between two Italian companies, the
district court correctly concluded that
“Louisiana has an interest in redressing the
injury based on the failure of the equipment in
unloading the reactor in New Orleans.”11 Al-
though in Asahi, the Court questioned
California’s interest in maintaining an in-
demnification suit between two foreign parties,
480 U.S. at 115, here Nuovo Pignone alleges
that damage to the reactor was caused by
Fagioli’s “negligence, fault, breach of duty, or
breach of contract or warranty.” Unlike the
situation in Asahi, where the underlying tor-
10 See Access Telecom, Inc. v. MCI Telecomm.
Corp., 197 F.3d 694, 716 (5th Cir. 1999) (re-
jecting Mexican company’s claim that subjecting it
to suit in the United States would be overly bur-
densome where the company had engaged in “nu-
merous business dealings in the United States”).
11 See Petroleum Helicopters, 804 F.2d at 1371
(noting that the “location of the accident affects
Louisiana’s interest in adjudicating the dispute”).

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8
tious conduct giving rise to an indemnification
claim occurred in Japan and the Republic of
China, this case is one in which the plaintiff
alleges the commission of a tort within the
forum. Louisiana undoubtedly has an interest
in ensuring the safety of its waterways.
IV.
Nuovo Pignone effected service of process
by sending a copy of the complaint by Federal
Express mail to Fagioli’s president in Milan,
Italy. Fagioli argues that service by mail vio-
lates FED. R. CIV. P. 4(f)(1), which permits
service of process on a foreign corporation “by
any internationally agreed means reasonably
calculated to give notice, such as those means
authorized by the Hague Convention.” The
Hague Convention is a multinational treaty
formed in 1965 for the purpose of creating an
“appropriate means to ensure that judicial and
extrajudicial documents to be served abroad
shall be brought to the notice of the addressee
in sufficient time.”12 The treaty seeks not only
to simplify and expedite international service
of process, but more importantly, to ensure
that service is effected timely and adequately.
The Hague Convention sets forth
permissible methods of effecting service.
Articles 2 through 7 require each signatory
nation to establish a “Central Authority” to act
as an agent to receive request of service,
arrange for service of documents, and return
proofs of service. Article 8 permits the use of
diplomatic agents to serve foreign defendants.
Article 9 permits diplomatic agents to forward
documents to designated authorities in
receiving nations who, in turn, effect service
on the proper parties.13
The parties disagree over the interpretation
of article 10(a), which states in context:
Provided the State of designation does
not object, the present Convention does
not interfere with
(a) the freedom to send judicial
documents, by postal channels, directly
to persons abroad,
(b) the freedom of judicial officers, of-
ficials or other competent persons of the
State of origin to effect service of
judicial documents directly through the
judicial officers, officials or other
competent persons of the State of
designation,
(c) the freedom of any person interested
in a judicial proceeding to effect service
of judicial documents directly through
the judicial officers, officials, or other
competent persons of the State of
destination.
Nuovo Pignone contends that article 10(a)
permits service of process by mail. Fagioli
argues that the subsection refers only to the
transmission of legal documents following ser-
vice, pointing to the fact that nowhere else in
the Hague Convention is the word “send” used
to refer to service of process; rather, the
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
Matters, Nov. 15, 1965, 20 U.S.T. 361, 362
T.I.A.S. No. 6638, reprinted in 28 U.S.C.A. FED.
R. CIV. P. 4, note, at 210 (1992).
13 In addition, Article 11 allows two signatories
to agree to other methods not specified in the
Convention.

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9
The parties’ differing positions reflect a cir-
cuit split over an issue this court has yet to
address. Those courts that have concluded
that article 10(a) permits service of foreign
parties by mail have looked to the broad pur-
pose of the Hague ConventionSSfacilitating
service abroadSSand concluded that article
10(a) would be “superfluous unless it was
related to the sending of such documents for
the purpose of service.”14 These courts have
opined that the use of the term send, rather
than service, in article 10(a) should be
attributed to careless drafting.
Other courts have held that the word
“send” in article 10(a) is not the equivalent of
service of process.15 These courts have
interpreted article 10(a) as providing a method
for sending subsequent documents after
service of process has properly been obtained.
Despite the broad purpose of the Hague
Convention, these courts have noted that the
word “service” is used in other sections of the
Hague Convention, including subparts (b) and
(c) of article 10 and articles 9, 15, and 16,
which all refer to forwarding documents for
the purpose of service. So, if the drafters had
meant for article 10(a) to provide an additional
manner of service of judicial documents, they
would have used “service” instead of “send.”
We adopt the reasoning of courts that have
decided that the Hague Convention does not
permit service by mail. In doing so, we rely on
the canons of statutory interpretation rather
than the fickle presumption that the drafters’
use of the word “send” was a mere oversight.
“Absent a clearly expressed legislative
intention to the contrary,” a statute’s language
“must ordinarily be regarded as conclusive.”
Consumer Prod. Safety Comm’n v. GTE
Sylvania, Inc., 447 U.S. 102, 108 (1980).
And because the drafters purposely elected to
use forms of the word “service” throughout
the Hague Convention, while confining use of
the word “send” to article 10(a), we will not
presume that the drafters intended to give the
same meaning to “send” that they intended to
give to “service.”16
Nuovo Pignone’s contention that the broad
purpose of the Hague Convention is furthered
if article 10(a) is interpreted to allow service
by mail is problematic. As noted, the purpose
of the Hague Convention is not only to
simplify the service of process, but to ensure
that plaintiffs deliver notice to foreign
addressees in sufficient time to defend the
allegation. Indeed, FED. R. CIV. P. 4(f)(1)
presumes that the Hague Convention provides
methods of service “reasonably calculated to
give notice.”
We are not confident, nor should the
drafters have been confident in 1967, that mail
service in the more than forty signatories is
14 Ackermann v. Levine, 788 F.2d 830, 839 (2d
Cir. 1986) (quoting Shoei Kako v. Superior Court,
33 Cal. App. 3d 808, 109 Cal. Rptr. 402 (1973));
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.
1998).
15 Bankston v. Toyota Motor Corp., 889 F.2d
172, 173-74 (8th Cir. 1989); see also Postal v.
Princess Cruises, Inc., 163 F.R.D. 497, 500 (N.D.
Tex. 1995); Pennebaker v. Kawasaki Motors
Corp., 155 F.R.D. 153, 157 (S.D. Miss. 1994).
16 In Russello v. United States, 464 U.S. 16, 23
(1983), the Court noted that where a legislative
body “includes particular language in one section
of a statute but omits it in another section of the
same Act, it is generally presumed that the [leg-
islative body] acts intentionally and purposely in
the disparate inclusion or exclusion.”

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10
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.”

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