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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

Before SMITH and BENAVIDES, Circuit
capable of entering the pre-selected port of
Judges, and FITZWATER,* District Judge.
discharge.
JERRY E. SMITH, Circuit Judge:
Fagioli entered into a secondary contract
with Blau Shipping & Trading, Ltd. ("Blau
Fagioli, S.A. ("Faglioli"), agreed to furnish
Shipping"). This contract, known as a con-
a ship for the maritime transport of Nuovo
linebooking note, specified that the vessel M/V
Pignone, SpA's ("Nuovo Pignone's") 771,000
STORMAN ASIA ("STORMAN ASIA")
kilogram reactor from Italy to Louisiana. The
would be used to transport the reactor and that
reactor was damaged after arrival at the Port
Geismar or New Orleans was the port of
of New Orleans, and Nuovo Pignone sued.
discharge. Blau Shipping then entered into a
The district court found that Fagioli, an Italian
secondary conlinebooking note with Key Lar-
company, was subject to personal jurisdiction
go Transportes Maritimos ("Key Largo"), the
in Louisiana and that Nuovo Pignone properly
owner and operator of the STORMAN ASIA.
had effected service of process by mail. We
Nuovo Pignone's Louisiana client and Key
affirm the assertion of personal jurisdiction but
Largo were responsible for unloading the
reverse the determination that article 10(a) of
reactor at the point of destination.
the Hague Convention permits service of
process by mail.
The reactor was loaded on board the
STORMAN ASIA in Italy and transported
I.
across the Atlantic Ocean without incident.
Fagioli is an Italian corporation providing
While the reactor was being transferred to a
worldwide transportation and logistical servic-
barge at the Port of New Orleans, one of the
es necessary to transport heavy-lift cargo. Nu-
cables of the vessel's onboard shipping crane
ovo Pignone, also an Italian company, con-
broke, causing the reactor to fall. The reactor
tracted with Fagioli for the transport of a large
and the deck of the barge were damaged. Nu-
EO reactor from Italy to Louisiana. Under the
ovo Pignone alleges that the accident resulted
terms of the contract, Fagioli was responsible
from Fagioli's failure to provide a vessel with
for selecting a vessel for the transit.
a satisfactory onboard shipping crane, as re-
quired by the original contract.
The contract required that Fagioli furnish a
ship possessing specified performance capabili-
II.
ties. Fagioli agreed to furnish a ship that
Nuovo Pignone brought breach of contract
"[h]as its own shears and winches and hoisting
and tort claims against Fagioli, Key Largo, and
means, including swingletrees and cables for
the STORMAN ASIA and effected service of
safe, autonomous hoisting operations and/or
process on Fagioli by sending the complaint
unloading in connection with the weight of the
and summons by Federal Express mail to
objects to be transported . . . ." The contract
Fagioli's president in Milan, Italy. Fagioli
required that the ship be seaworthy, equipped
moved unsuccessfully to dismiss for lack of
with appropriate engines for navigation, and
personal jurisdiction and insufficiency of
process. The district court concluded that
personal jurisdiction could be established over
* District Judge of the Northern District of
Fagioli because the company had made
Texas, sitting by designation.
2

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

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

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

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

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

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

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

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."
10