A Vessel Doesn't Have To Be a Criminal To Be Arrested: in Rem Admiralty Jurisdiction and the Supplemental Rules
Michael Orlando | November 17, 2001
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 Rules."
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.
Maritime Attachment
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.
In Rem Jurisdiction
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.
Rule D
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.
Rule E
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.
Supplemental Rule F
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.
Conclusion
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 admiralty.
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 well.
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