The case of the day is Pablo Start Ltd. v. The Welsh Government (S.D.N.Y. 2016). The Welsh government ran a ‘Visit Wales’ tourism campaign, which included photographs of the poet Dylan Thomas that, according to Pablo Start, were subject to copyright and used without permission. The judge explains that Dylan Thomas was “a Welsh-born poet who lived from 1914 to 1953” and who “is best known for his troubled and chaotic personal life and for penning the poem ‘Do not go gentle into that good night.'” Okay, but why that poem? Why not “And death shall have no dominion,” or “The force that through the green fuse drives the flower”? Anyway, the claim was that the Welsh campaign had provided publishers, who were also defendants, with the photographs, which then were published in various media. Pablo Start sued Wales in New York.
Rather than reaching the FSIA issues, the court disposed of the case against the Welsh government on service of process grounds. Pablo Start tried to effect service via the Crown Proceedings Act 1947, which requires service on a solicitor for the government department being sued. This was not a ridiculous idea, since in an email exchange before commencement of the action, counsel for Pablo Start wrote:
Also, please advise if you are authorized to accept service on behalf of your client and if you’d be willing to do so electronically. If not, please identify your client’s agent for service of process in New York.
The lawyer for the Welsh government had responded:
We are not authorised to accept service. Proceedings should be served upon the Welsh Ministers, addressed to the Director of Legal Services, Mr Jeffrey Godfrey. This is in line with provisions of the Crown Proceedings Act 1947.
According to Pablo Start, this exchange constituted a special arrangement for service under 28 U.S.C. § 1608(a)(1), and therefore not only was Pablo Start permitted to make service in this way, it was required to make service in this way (since the four methods of service set out in the FSIA must be tried in the order set out in the statute).
Sending these kinds of emails pose risks for both sides. It’s not clear why the Welsh government’s lawyers would write what they wrote, since foreign states almost always want to put plaintiffs through their paces on service of process and it is at least possible to read the emails as an agreement or at least an invitation to serve process via the Crown Proceedings Act rather than via the FSIA. The email is also risky for the plaintiff, because it muddies the waters and creates a risk that the plaintiff will get service wrong. I think if you want to make an agreement on a special arrangement for service of process for FSIA purposes, you ought to be very explicit about it.
In any event, the judge held that the emails weren’t sufficiently definite or clear to constitute an special arrangement for service. “Courts require a more definite manifestation of agreement when determining that a special arrangement has been made …” So the case was dismissed (perhaps the court should have quashed the service and given the plaintiff another chance, but the court dismissed the case on other grounds, too, so that’s a moot point).