Under maritime law, a vessel can be arrested
to obtain jurisdiction and security for certain claims. Michael Orlando explores
the basics of the different types of admiralty jurisdiction and what admiralty
lawyers mean when they refer to "Supplemental Rules."
One of the many unique features of admiralty law is the ability to arrest a vessel in a civil proceeding in federal court to obtain
jurisdiction and security for certain claims. This article will explore the
basics of the different types of admiralty jurisdiction, and more particularly,
of what admiralty lawyers are speaking when reference is made to the "Supplemental
As a general proposition, a court can exercise three types of jurisdiction
over a party: in personam, in rem, and quasi-in rem.In
personam jurisdiction is jurisdiction over the person or entity in the
forum. In rem jurisdiction is jurisdiction
over the object in controversy in the forum. Quasi-in
rem is jurisdiction over the person up to the value of property located
in the forum.
The Federal Rules of Civil Procedure, as interpreted by the U.S. Supreme
Court through case law, require a court to have at least one type of jurisdiction
over a defendant before adjudicating a case. In addition to the Federal Rules,
the Supplemental Rules for Certain Admiralty and Maritime Claims ("Supplemental
Rules"), which are found at the end of the numbered Federal Rules, provide specific
procedures for obtaining jurisdiction over defendants in cases sounding in admiralty
and maritime law as defined by Rule 9(h) of the Federal Rules of Civil Procedure.1
Specifically, the Supplemental Rules deal with actions seeking the following
remedies: (1) maritime attachment and garnishment; (2) actions in rem; (3) possessory,
petitory, and partition actions; or (4) actions for exoneration from or limitation
of liability. The Supplemental Rules address how a court may obtain jurisdiction
over a party or marine property in these special admiralty and maritime cases.
Because of the Supplemental Rules, jurisdiction by the court is subject to a
different, detailed analysis than other cases.
Rule B codifies the traditional maritime attachment practice.2 In many ways, maritime attachment is similar to the typical state law attachment
principles. It is used when the plaintiff may have an in personam claim against the defendant,
but the defendant "is not found within the [forum] District."3 Normally, the court has in personam jurisdiction
over a person who is within the court's territorial or subject-matter jurisdiction
and is amenable to service of process, i.e., within the state or country's borders
for purposes of personal jurisdiction. However, Supplemental Rule B grants a
court jurisdiction over a defendant outside the court's territorial jurisdiction
by attachment of property.
The case law requires a two-prong-test before invoking attachment under Rule
B. The first prong is whether the defendant has minimum contacts with the forum
so as not to offend the traditional notions of fair play and justice.4 This is the same analysis used by the courts in determining jurisdiction in
a typical federal case. This will not usually be a problem to overcome in most
instances when the defendant has property in the jurisdiction.
The second prong is the more difficult one as it requires a determination
of whether the defendant is present in the forum district in person or by agent
to receive service of process. If the defendant is present in the district,
then a plaintiff may not use Rule B to attach
the defendant's property. This test has been interpreted to require presence
in the actual district of the state where the action is filed, and not merely
within the reach of the state's long-arm statute.5
A defendant's presence in the forum state but outside of the forum district
will not defeat attachment. However, a general appearance by the defendant in
the forum district will defeat the attachment. As is apparent, this rule is
one that contains many hurdles that are, in practice, quite difficult to overcome.
Damages under Rule B are limited to the value of the property attached. In
this sense, it is a quasi-in rem action.
If the defendant makes a general appearance, the judgment attaches directly
to the defendant, and the damages are not limited by the value of the property
attached. Additionally, if the defendant's property leaves the district after
attachment, the court retains jurisdiction over the defendant. If more property
enters the district after the attachment, it is not subject to the court's jurisdiction,
unless the entire process is renewed as to the additional property.
Rule B is the source of a substantial amount of procedural wrangling. It
is almost never clear-cut in its application.
Rule C of the Supplemental Rules for Certain Admiralty and Maritime Claims
is used for an in rem action against property.
When an admiralty lawyer arrests a vessel, it is pursuant to this particular
Supplemental Rule. An action in rem is an action directly against property as
a defendant.6 This is different from the
attachment practice under Rule B. Rule B is an extension of in personam jurisdiction
through the personal property of the defendant. An in rem proceeding can only be brought against
a property that is subject to a maritime lien. Only a plaintiff holding a maritime
lien can bring the action, and it can only be filed in federal court.
The plaintiff can use this action as a way to satisfy its maritime lien simply
because the property is within the territorial jurisdiction of the court. Once
the plaintiff files a complaint and affidavit as to the validity of the maritime
lien against the vessel, the federal court can issue an order to seize, i.e.,
arrest the vessel.
The plaintiff must first provide a cash deposit of typically $10,000 to the
U.S. Marshal for the cost of arresting and maintaining security and insurance
on the vessel. The vessel owner or operator is entitled to a prompt hearing
in court to contest the appropriateness of the seizure. Also, the parties can
either agree on the amount and type of security, such as a letter of undertaking
from a Protection and Indemnity Mutual Club, or the court will fix the amount
of security, and a bond will have to be supplied by the vessel interest in order
for the vessel to be released. The vessel will be sold unless the defendant
posts the bond or the court finds the complaint and affidavit are not valid.
The damages in an in rem action are limited
to the amount of the maritime lien. Further, if the plaintiff prevails on proof
of the lien, the damages will be satisfied out of either the agreed security/court
ordered bond or by proceeds from the forced sale of the vessel by the U.S. Marshal.
The lien is discharged even if the security/bond or the Marshal's sale of the
vessel does not cover the amount of the lien.
To remedy this situation, the rules allow a plaintiff to combine actions.
The in rem action can be pled in addition
or in the alternative to an in personam action.7 If they are used together, the
plaintiff my take a deficiency judgment against the defendant if the value of
the vessel does not cover the amount of damages.
Supplemental Rule D is one of the least used of the Supplemental Rules as
it concerns mainly actions for possession of or title to a vessel. The rule
simply makes clear that there is federal jurisdiction for these types of actions
and provides a basis for how to obtain in rem jurisdiction over the vessel (or cargo or other property).
A Rule D action is not common in general admiralty practice. Most in rem actions, whether they be for foreclosure
of a ship mortgage, attachment of maritime property, or assertion of a maritime
lien, are typically brought under Rules B or C. There are very few things more
arcane in admiralty law than an action to try title to a vessel.
Supplemental Rule E provides the nuts and bolts for how one goes about filing
a Rule B or Rule C action, seizing the vessel or property, release of the vessel
or property by posting security for the claim, and the procedure for forced
sale by the U.S. Marshal if no security is posted. Quite interestingly, most
of the forms still in use today contain legalese that is on the opposite end
of the spectrum from plain English. You have to consult Black's Law Dictionary just to read the
form, and still it takes an experienced admiralty lawyer to understand it! This
is an area long overdue for a revamping of the standard forms. The most important
thing to know about Rule E is that it is the place to look for the procedural
"meat" of Rules B and C.
Rule F contains the procedures for the filing of a Limitation of Liability
action. That type of suit is authorized by 46 U.S.C. Section 181, et seq. It allows a vessel owner to limit
its liability for a marine accident to the value of the vessel, post-casualty,
if certain requirements are met. Since in many instances, the value of the vessel
post-casualty will be less than the true damages to the claimant, this type
of action is not in favor and has been the subject of a great deal of debate
over whether it has outlived it original purpose of promoting a U.S. merchant
marine fleet of vessels in world competition. Supplemental Rule F only concerns
an admiralty suit relating to the Limitation of Liability Act.
The Supplemental Rules for Certain Admiralty and Maritime Claims provide
the framework for traditional admiralty causes of action. While the general
Federal Rules of Civil Procedure apply to all civil cases, it is essential that
the practitioner is familiar with the Supplemental Rules for cases involving
In some ways, a plaintiff is afforded a better opportunity to exercise jurisdiction
over a defendant and assure satisfaction of the claim against the defendant
in an admiralty case than in a land-based case. Those that practice admiralty
law feel privileged—at least to some degree—that we have a "special" set of
procedural rules, unique to the admiralty practice, which no other practice
areas have. This, of course, is traced back to the mention of admiralty and
maritime law in the U.S. Constitution.
The Supplemental Rules are meant to provide the procedural basis for the
traditional admiralty and maritime law practice. They serve that purpose quite
1Fed. R. Civ. P. Supplemental
Rules for Certain Admirality and Maritime Claims Rule A.
2Thomas J. Schoenbaum, Admiralty and Maritime Law, 2d ed., §
3Fed. R. Civ. P. Supplemental
Rules for Certain Admirality and Maritime Claims Rule B(1).
Shoe Co. v Washington, 326 U.S. 310, 66 S Ct 154 (1945).
v Ostermunchner, 664 F2d 65 (5th Cir 1981)
6Supra note 3 § 18-3.
7Rule C(1)(b). This is
allowed as long as the United States or a foreign sovereign does not own the
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