Nicholson v. Yamaha Motor Co., Ltd.
| Decision Date | 01 December 1989 |
| Citation | 566 A.2d 135,80 Md.App. 695 |
| Parties | George William NICHOLSON, Jr. v. YAMAHA MOTOR COMPANY, LIMITED, et al. 362 Sept. Term 1989. |
| Court | Court of Special Appeals of Maryland |
Steven M. Levine and Walter J. Smith, Jr. (Wilson, Elser, Moskowitz, Edelman & Dicker, on the brief), Washington, D.C., for appellees.
Argued before WILNER, ALPERT and CATHELL, JJ.
Appellant, who now undoubtedly wishes that he hadn't, purchased a 1982 Yamaha motorcycle, Model XJ 400J. The motorcycle was manufactured by Yamaha Motor Company Ltd. of Japan, a Japanese corporation (Yamaha Japan). It entered the American stream of commerce through Yamaha Japan's American distributor, Yamaha Motor Corporation, U.S.A. (Yamaha America), which, in turn, distributed it to a regional distributor, Maryland Yamaha, Inc. (Yamaha Maryland). Yamaha Maryland ultimately sold the vehicle to appellant.
On November 21, 1984, while driving his motorcycle in Baltimore City, appellant was struck by an automobile that made a left turn into his path. As a result of the collision, appellant suffered injury to his left leg. Believing that his injuries were due, at least in part, to the absence of a crash bar or other protective device on the motorcycle, he sued all three Yamaha corporations in the Circuit Court for Baltimore City.
Appellant attempted service on Yamaha Japan by sending a copy of the complaint and writ of summons to its president in Japan by registered mail, return receipt requested. A receipt, signed by one Tomoko Kato, was eventually returned. Nonetheless, Yamaha Japan successfully moved to quash the service as not being in accord with the requirements for service on a Japanese defendant set forth in a 1965 treaty to which the United States and Japan are parties. 1 The other two defendants moved to dismiss the Appellant thereupon filed an amended complaint alleging five causes of action against the three defendants--"gross negligence" in the design of the motorcycle and in the defendants' failure to warn of the defect in design (Count One), breach of implied warranties of safety, fitness, and merchantability (Count Two), strict liability for design defect (Count Three), strict liability for failure to warn (Count Four), and misrepresentation (Count Five). He made no attempt to serve the amended complaint directly on Yamaha Japan but instead served that defendant's copy on the attorneys who had entered their appearance on behalf of Yamaha America and who had filed the earlier motion to quash on behalf of Yamaha Japan. Eventually, the court disposed of the case by (1) granting Yamaha Japan's motion to dismiss for lack of effective service and (2) granting motions to dismiss, which it treated as motions for summary judgment, filed by the other two defendants based on failure to state a cause of action.
complaint on more substantive grounds, basically that it failed to state a cause of action. Those motions were granted, with leave to amend
In this appeal, appellant complains about the dismissal of Yamaha Japan and the judgment entered for the other defendants with respect to four of the five counts in the amended complaint. He makes no argument with respect to the judgment as to Count Five (Misrepresentation).
SERVICE ON YAMAHA JAPAN
When he filed his initial complaint, appellant treated all three defendants as completely separate entities and attempted service on each individually. Service on Yamaha America was obtained by serving process on its president As we observed, the material sent to Mr. Eguchi was apparently received by someone else, Tomoko Kato. The record does not reveal Mr. Kato's connection with Yamaha Japan. Although never denying the actual receipt of the papers sent by appellant, Yamaha Japan responded with a motion to quash the service as not being in accord with the Hague Convention. In November, 1986, the court granted that motion. Appellant made no further effort to serve Yamaha Japan directly. He attempted to serve the amended complaint, which was filed about a month before the court's ruling on the motion to quash, on Yamaha Japan by serving a copy on counsel for Yamaha America. That too the court found wanting.
Takeshi Kimura, in Cypress, California; service on Yamaha Maryland was effected by serving process on one Joseph H. Rouse in Glen Burnie, Maryland. Yamaha Japan was alleged to be "a foreign corporation doing business in the State of Maryland"; service on it was attempted by sending a copy of the complaint, prayer for jury trial, and summons, all in English, to its president, Hideto Eguchi, in Iwata City, Japan, by certified mail
In this appeal, appellant urges that service was properly effected on Yamaha Japan (1) by sending the process to its president by restricted delivery mail pursuant to Rule 2-121(a) and (2) by serving the amended complaint on its "domestic agent," Yamaha America. We have considerable difficulty with the second of these propositions under the facts of this case, but we need not reach that issue because we find merit in the first argument.
The Hague Convention, which revised parts of two earlier treaties on the subject, "was intended to provide a simpler way to serve process abroad, to assure that defendants sued in foreign jurisdictions would receive actual and timely notice of suit, and to facilitate proof of service abroad." Volkswagenwerk Aktiengesellschaft v. Schlunk, 486 U.S. 694, 108 S.Ct. 2104, 2107, 100 L.Ed.2d 722 (1988). The Convention applies, and its procedures must be gratified, "in all cases, in civil and commercial matters, where there is The mechanism devised by the Convention for achieving its several purposes is the creation or designation by each adherent of a Central Authority to receive requests for service of documents from other countries and to serve those documents in accordance, or in a manner consistent, with the internal law of the recipient nation. Art. 5 of the Convention, being part of the Chapter on "Judicial Documents," states, in relevant part, that:
Art. 3 of the Convention requires the "authority or judicial officer" competent under the law of the requesting State to forward to the Central Authority of the recipient State "a request conforming to the model annexed to the present Convention" accompanied by "[t]he document to be served or a copy thereof...." Upon service of the document, the Central Authority prepares and sends to the applicant a certificate attesting to the service and stating the date, place, and method of service and the person served. Id. at art. 6.
Japan designated its Minister of Foreign Affairs as its Central Authority under the Convention. Appellant concedes that he never sent either a request or the relevant documents to the Minister for service on Yamaha Japan. The method of service particularly selected by the Convention, therefore, was not used.
Service through a Central Authority is not necessarily an exclusive method of serving defendants resident in party- Of the several alternative methods provided for in the Convention itself, appellant relies on two--art. 10 and art. 19. 2
nations. The Convention itself allows for alternative methods under certain circumstances, and in Volkswagenwerk Aktiengesellschaft v. Schlunk, supra, 108 S.Ct. 2104, the Supreme Court concluded that the Convention did not apply when process is served on a foreign corporation through service on a domestic subsidiary deemed under State law to be the foreign corporation's involuntary agent for service.
Art. 10 states:
(Emphasis added.)
Japan did indeed object to paragraphs (b) and (c), and so only paragraph (a) of art. 10 applies with respect to Japanese defendants.
Art. 19 provides: "To the extent that the internal law of a contracting State permits methods of transmission, other than those provided for in the preceding articles, of documents coming from abroad, for service within its territory, the present Convention shall not affect such provisions."
Appellant argues that service of process by mail is allowed under Maryland law by Md. Rule 2-121 and under Japanese law by articles 162, 169, 170, 171, and 172 of the Japanese Code of Civil Procedure. Accordingly, he contends, service by certified mail directed to the president of Yamaha Japan does not offend the Convention and indeed is permissible under articles 10(a) and 19.
There are two different questions here: first, whether the authority in art. 10(a) "to send judicial documents, by postal channels, directly to persons abroad" (emphasis added) includes the authority to serve process by those channels; and, second, whether internal Japanese law...
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