Vazquez v. Sund Emba AB

• Decision Date: 11 December 1989
• Citation: 152 A.D.2d 389,548 N.Y.S.2d 728
• Parties: Edwin VAZQUEZ, Respondent, v. SUND EMBA AB, Appellant, et al., Defendant.
• Court: New York Supreme Court — Appellate Division

Page 728

548 N.Y.S.2d 728

152 A.D.2d 389

Edwin VAZQUEZ, Respondent, v. SUND EMBA AB, Appellant, et al., Defendant.

Supreme Court, Appellate Division,

Second Department.

Dec. 11, 1989.

Ahmuty, Demers & McManus, Albertson (Henri A. Demers, of counsel), for appellant.

Donner, Hariton & Berka, P.C., Bay Shore (Ira M. Hariton, of counsel; Robert J. Zysk, on the brief), for respondent.

Before MOLLEN, P.J., and SPATT, SULLIVAN and ROSENBLATT, JJ.

ROSENBLATT, Justice.

We are asked to interpret provisions of the Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters dated November 15, 1965 (hereinafter the Hague Convention or the Convention) (20 UST 361, TIAS No. 6638, 658 U.N.T.S 163), ¹ and their application to the plaintiff's service of process on a Swedish company.

The case comes to us by virtue of the motion of the defendant Sund Emba AB (hereinafter the appellant) to dismiss the complaint insofar as it is asserted against it for lack of in personam jurisdiction. The validity of the service of process and, hence, personal jurisdiction depends, for reasons which will follow, on whether service was effectuated in accordance with the Hague Convention. The Supreme Court denied the appellant's motion to dismiss, holding that pursuant to article 10(c) of the Convention, the "plaintiff's personal service of the summons and complaint on appellant was sufficient service to give this court jurisdiction of the present dispute". We agree.

In his complaint, the plaintiff alleges that he was injured during the course of his employment in Farmingdale, New York, when his hand became caught in a corrugated box folding machine, allegedly manufactured by the appellant, a limited company organized under the laws of Sweden. The plaintiff's summons and complaint, written in English, was served by Anders Sandberg, a Swedish notary public, personally upon the appellant's managing director Erik Sjunnesson at the appellant's facility in Orebro, Sweden.

Suits involving parties in different countries present special problems relating to procedure under international law. The means by which a party may be subjected to the jurisdiction of the courts of another country goes to the very heart of national sovereignty and international political sensibilities. In this arena, one of the most vexing problems has involved the acquisition of jurisdiction, in the context of service or delivery of process, and the underlying issues of notice and fairness.

The declarations of the Hague Convention were the result of negotiations in which the signatory states, including Sweden and the United States, fashioned and adopted various procedures designed to deal with the service of documents from abroad. In order to better understand the declarations and provisions, it is appropriate to examine the history of the treaty, its purpose, its development, and the extent to which signatory states intended to retain or alter practices that they employed before they joined the Convention (see, Volkswagenwerk Aktiengesellschaft v. Schlunk, 486 U.S. 694, 699-700, 108 S.Ct. 2104, 2108, 100 L.Ed.2d 722).

On February 10, 1969, the Hague Convention became effective with respect to the United States. For Sweden it became effective on October 1, 1969 (Kluwer,Practical Handbook on the Operation of the Hague Convention of 15 November 1965 on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters, at 124 [1983] [hereinafter cited as Handbook ]. It was the first multilateral treaty on international judicial procedure which the United States ever joined (Boyd, Contemporary Practice of the United States Relating to International Law, 72 Am.J.Intl.L., 119, 130-131 [1978].

The Convention was designed to establish a regime "for the effective, expeditious and inexpensive service of legal documents abroad" (Reports on the Work of the Special Commission on the Operation of the Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters: Report of the U.S. Delegation to the Special Commission, 17 International Legal Materials 312 [1978]. Although the first meetings of the Hague Conference began in 1893, and by 1909 had 16 European states as members, the interruptions of two world wars prevented its expansion to a wider economic international community (9 Encyclopedia of Pub.Intl.Law, Hague Conventions on Civil Procedure 147, 148).

In the post-war period of the 1950's, international commerce burgeoned, and American analysts believed that international procedures for settling commercial disputes were in need of modernization (Commission on International Rules of Judicial Procedure--Establishment, 1958 U.S.Code Cong. & Ad.News, at 5201), so that in 1956 the United States, for the first time, sent an observer delegation to the Conference (Downs, The Effect of the Hague Convention on Service Abroad of Judicial and Extrajudicial Documents on Civil or Commercial Matters, 2 Cornell Intl.L.J. 125, 126 [1968] [hereinafter cited as Downs]. Shortly thereafter the United States Congress passed legislation authorizing the creation of a commission to investigate and improve upon practices in international juridical relationships, with the result that President Johnson, in 1963, signed a resolution authorizing American participation in the Hague Conference (Downs, at 127-128). At the heart of the matter was a quest for harmony and procedural efficiency in a setting confounded by widely divergent practices and varying notions relating to jurisdiction. As described by the Commission itself:

"courts in the United States operate under the general principles of the Anglo-American common-law system and other countries of Latin America and continental Europe operate under various modifications of the civil-law system. The civil-law system has as its basis the ancient system of Roman law and the Code Napoleon * * * There are those countries which operate under Islamic law, and newly created countries such as Indonesia, India, Pakistan, Burma, and Israel which have adopted procedural systems which are a combination of several different systems" (Commission on International Rules of Judicial Procedure, supra, at 5202).

During the early stages of American participation in the Convention, the member states were focusing on the issues of international service of legal documents, with the result that the Convention undertook to refine and codify appropriate procedures, and to meet periodically to draft conventions affecting problems between member nations (Downs, at 126-127).

As for service of process, the governing provision that emerged from the Hague Convention was that "[e]ach contracting State shall designate a Central Authority which will undertake to receive requests for service coming from other contracting States" (Convention article 2). Upon receiving a request, the Central Authority must serve the document, or arrange to have it served by "an appropriate agency", either by a method prescribed by the internal law of the receiving state, ² or by a method designated by the requester, if compatible with the law of the receiving state (Convention article 5).

It is noteworthy that while the member states contemplated a uniform procedure by conceiving of a Central Authority within each state, they also determined that the states should be free to consent to additional methods of service within their borders, consonant with their own laws (Articles 8 through 11, 19).

Article 10, which is at the core of this case, provides as follows:

"Provided the State of destination does not object, the present Convention shall not interfere with--

"(a) the freedom to send judicial documents, by postal channels, directly to persons abroad,

"(b) the freedom of judicial officers, officials 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 destination.

"(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".

In ratifying the Convention, most states, including Sweden, made various declarations reflective of their own sense of sovereignty, ³ in which they set forth objections or requirements with respect to certain methods of service.

Sweden signed the Convention with the following declaration:

"a) The Ministry of Foreign Affairs (address: Utrikesdepartementet, Juridiska byran, Box 16121, S-103 23 Stockholm 16, Sweden) has been designated Central Authority.

"b) The Central Authority (the Ministry for Foreign Affairs) has been designated to receive documents transmitted through consular channels, pursuant to art. 9.

"c) Swedish authorities are not obliged to assist in serving documents transmitted by using any of the methods referred to in sub-paragraphs (b) and (c) of art. 10.

"By virtue of the third paragraph of art. 5 of the Convention the Central Authority requires that any document to be served under the first paragraph of the same article must be written in or translated into Swedish" (Convention, n. 12 [emphasis supplied].

The appellant argues that the method of service used by the plaintiff is incompatible with this declaration. Specifically, the appellant claims that Sweden's declaration italicized above must be interpreted as that State's objection to personal service of foreign documents except by the Central Authority. The appellant further contends that, in any event, service was improper because a Swedish translation of the summons and complaint was not provided.

Initially, the parties acknowledge, as do we, that compliance with the Convention is mandatory in all cases to which it applies, and that the law of the judicial forum (here, New York) determines...