Process and Pleading

The process and pleading in admiralty cases is initiated with an identification of admiralty claims.  According to Fed. R. Civ. P. 9(h), invoking the admiralty jurisdiction requires an identification of the claim as one in admiralty.  Fed. R. Civ. P. 9(h) provides that the amendment of a pleading to add or withdraw an identifying statement is governed by the principles of Fed. R. Civ. P. 15.  Pursuant to Fed. R. Civ. P. 15(a), when a party seeks to amend a pleading, leave shall be freely given when justice so requires.[i]

The identification of a claim under Fed. R. Civ. P. 9(h), or the failure to identify a claim under Fed. R. Civ. P. 9(h), is not an irrevocable election.[ii] There are circumstances in which a party cannot revoke a choice under Fed. R. Civ. P. 9(h) once made if this will prejudice the other party.  If the electing party has already invoked any of those special rules and procedures available in admiralty it can be prejudicial.  When a plaintiff has invoked the admiralty jurisdiction to take advantage of the interlocutory appeal of 28 U.S.C.S. § 1292(a)(3), this choice is irrevocable for that claim.  It would clearly prejudice the other side to allow such revocation.[iii]

An admiralty complaint should describe with reasonable particularity the property that is the subject of the action.[iv] The claimant should state in the complaint that the property in dispute is within the district or will be during the pendency of the action.  Supp. R. Certain Adm. & Mar. Cl. E(2)(a) requires that a complaint state the circumstances from which the claim arises with such particularity that the defendant or claimant will be able, without moving for a more definite statement, to commence an investigation of the facts and to frame a responsive pleading.[v]

Jurisdiction must be affirmatively clear from the face of a complaint.  It is not sufficient, that jurisdiction may be inferred, argumentatively, from its averments.[vi] The plaintiff should insert statements in the complaint identifying the claim as maritime claim.

Supp. R. for Certain Admiralty and Maritime Claims B(1), C(2) require that in rem actions be instituted by means of a verified complaint.  Rule B further requires that the complaint be accompanied by an affidavit to the effect that the defendant cannot be found within the district.[vii] Any one of the claimants need only verify a complaint.[viii]

In an in personam action interrogatories can be served to garnishee along with a complaint without leave of the court.  In an in rem action also, interrogatories can be served with the complaint.  However, any answers to the interrogatories should be filed with the answer to the complaint.

Jurisdiction in Personam is the personal jurisdiction of the court over the property.  If a court does not have personal jurisdiction over a defendant or property, then the court cannot bind the defendant to an obligation or adjudicate any rights over the property.  The admiralty court has no general jurisdiction over the respondent in a complaint in personam.  However, it acquires jurisdiction only by service of process on the respondent within the territorial scope of the court’s jurisdiction.  Jurisdiction may also be acquired by the voluntary appearance of the party on whom process would otherwise have to be served, or by attachment, within the territorial ambit of the court’s jurisdiction, of property of the party.

With respect to in rem and in personam proceedings, the Federal Supplemental Admiralty Rules provide for seizure of property without prior notice to the owner or the opportunity for a pre-seizure judicial hearing.  Arrests without prior notice under the rule governing in rem actions are constitutional, because the ‘exigent circumstances’.  Seizure without prior notice is permitted in admiralty when it is necessary to establish the court’s jurisdiction over the res and to prevent that jurisdiction from being thwarted by removal or destruction of the res.

In order to eliminate doubt about the constitutionality of the rules providing for seizure in ‘in rem’ actions and maritime attachment and garnishment, judicial scrutiny is provided for before the issuance of such process.

In admiralty and maritime proceedings, process in rem or of maritime attachment and garnishment may be served only within the district.[ix] A plaintiff may request that issuance and delivery of in rem process or maritime attachment and garnishment process be held in abeyance.[x] Upon issuance and delivery of the process, when it appears that the defendant cannot be found within the district, the marshal will execute the process making due and prompt return.[xi] If tangible property is to be attached or arrested, the marshal takes it into the marshal’s possession for safe custody.[xii] If intangible property is to be attached or arrested the marshal executes the process by leaving with the garnishee or other obligor a copy of the complaint and process requiring the garnishee or other obligor to answer as provided by the supplemental admiralty rules.[xiii]

In order to obtain attachment and garnishment, a claimant can put a claim in a verified complaint to attach the defendant’s tangible or intangible personal property, up to the amount sued for, which is in the possession of the garnishees named in the process.  The complaint should be accompanied by an affidavit, signed by the plaintiff or his/her attorney, stating that to the complainant’s knowledge, information and belief the defendant could not be found within the district.

Federal statute provides that if the conditions for an in rem action appear to exist, the clerk of the court may issue a warrant for the arrest of the vessel or other property that is the subject of the action.[xiv] Further, if the plaintiff or the plaintiff’s attorney certifies that exigent circumstances make courts review impracticable, the clerk of the court may issue a summons and a warrant for the arrest of the vessel or other property that is the subject of the action.[xv] The failure to arrest a vessel results in a failure to establish in rem jurisdiction over the vessel.

When a property subject to an action is released a notice on execution of process is required under Supplemental Admiralty Rules.  Generally, notice filed in compliance with USCS Admiralty and Maritime Claims R C(4) is deemed sufficient to satisfy the due process requirement of the fourteenth amendment.

Maritime attachment serves two purposes: to secure a respondent’s appearance and to secure satisfaction, if the suit is successful. While answering an arrest, if a person has to claim a specific property, s/he has to prove the ownership of property by a statement in the claim to its effect.

Res can be substituted by security.  Upon the giving of security, the court’s admiralty jurisdiction is automatically invoked.  This happens because the stipulation for value takes the place of the res and has the same legal effect.  Similarly, a letter of undertaking can take the place of actual res, and will be sufficient in the case.

Regarding release of res any person claiming an interest is entitled to a prompt hearing in which the plaintiff is required to show why arrest or attachment should not be vacated or other relief granted consistent with the federal admiralty procedural rules, whenever property is arrested or attached.  A claimant is entitled to property without the necessity of paying costs incidental to its seizure, upon giving a bond.  A bond given to secure the release of a vessel, acts as a substitute for the vessel, which is thereafter discharged and freed from the liens involved in the suit.

Courts are entitled to sell seized real property pursuant to resolution of forfeiture action.  Generally, the marshal or deputy marshal shall perform the sale of property.[xvi]

In admiralty actions, there are mainly two parties, Claimant and Defendant.  A claimant is the person who makes a claim.  In the context of an admiralty suit in rem claimant can either be the person whose property is proceeded against or the person under whose care the property is and has duty to represent the actual owner.[xvii] Further, in The Sebastopol, 47 F.2d 336, 342 (D.N.Y. 1931), the court held that if the owners of the vessels come to court as claimants, when actions in rem against their vessels are involved, then they will be considered as petitioners asking for the favor that their vessels be returned to them.

The second party in admiralty actions is a defendant.  A defendant can either be the respondent or one who raises a claim to the property in issue whereby opposing libellant’s claim.  Defendants can be anyone including claimants who defend an admiralty suit.  If a defendant enters an action in rem proceeding, then it becomes an action in personam proceeding.

In admiralty actions parties’ true names must be used.  The fictitious names of the parties applicable to no one cannot be used if the original name is known.  In Hancock v. First Nat’l Bank, 93 N.Y. 82, 85 (N.Y. 1883), the New York court of appeals held that, the parties can be identified by circumstances or description instead of real name if the real name is unknown to the other party using the fictitious name.

In admiralty cases, litigants are entitled to a trial by the court except in some circumstances.  In an action tried by a jury, reference to a master can be made, when the issues are complicated.  Burden of proof always rests on the party who has an affirmative issue.  The party has to prove the issue by a preponderance of the evidence.

Although a defendant is entitled to a jury trial of its counterclaims, s/he cannot obtain a jury trial by asserting a non admiralty defense.  In a non-admiralty action, a plaintiff is entitled to jury trial; the court can decide the admiralty defense while the remainder of the case is tried by a jury.

Appellate proceedings in admiralty law are initiated by providing notice of appeal.  The time fixed to appeal a decision in an admiralty action is the same as in federal civil cases, i.e., within thirty days from delivery of judgment or order.[xviii]

Generally, only final judgments are appealable.  However, in federal courts, appeals from interlocutory orders are also permissible according to a doctrine called the collateral order doctrine.  The doctrine applies to admiralty cases also.[xix] When an admiralty appeal from interlocutory orders is brought before a court of appeal, at least one claim in the appeal should be an admiralty claim.[xx] An appeal from an interlocutory order can lie to a court of appeal immediately after the order is proclaimed.  However, the interlocutory order should conclusively determine a particular claim in an action.[xxi]

The procedural rules applicable in federal civil cases apply to admiralty cases as well.  Generally, in federal district courts, admiralty actions in rem are tried without a jury.  In such circumstances, the court of appeals can review de novo a district court’s legal findings and factual findings.[xxii] A court of appeals cannot find a district court decision erroneous unless there is abuse of discretionary power and violation of legal principles.[xxiii]

In admiralty cases, review of court of appeals’s decisions is done by the Supreme Court.  The general rule that a review is brought before the Supreme Court by a writ of certiorari is applicable in admiralty cases also.  When a state court decides an admiralty case and the substantial question in the case comes under federal law, the matter comes under the ambit of review of the Supreme Court.[xxiv]

[i] Subaru Distribs. Corp. v. Gen Ship Corp., 167 F.R.D. 342 (D. Mass. 1996)

[ii] Gonzalez v. M/V Destiny Pan., 203 F.R.D. 673 (S.D. Fla. 2001)

[iii] Foulk v. Donjon Marine Co., 182 F.R.D. 465 (D.N.J. 1998)

[iv] Supp. R. Certain Adm. & Mar. Cl. C(2)(b)

[v] Great Lakes Exploration Group, LLC v. Unidentified Wrecked & Abandoned Sailing Vessel, 522 F.3d 682 (6th Cir. Mich. 2008)

[vi] El Oriente, 5 F.2d 251 (D.N.Y. 1925)

[vii] Amstar Corp. v. M/V Alexandros T., 431 F. Supp. 328 (D. Md. 1977)

[viii] The Oregon, 116 F. 482 (9th Cir. Alaska 1902)

[ix] USCS Admiralty and Maritime Claims R E (3) (a)

[x] USCS Admiralty and Maritime Claims R E(3) (c)

[xi] USCS Admiralty and Maritime Claims R E (4) (a)

[xii] USCS Admiralty and Maritime Claims R E (4) (b)

[xiii] USCS Admiralty and Maritime Claims R E (4) (c)

[xiv] USCS Admiralty and Maritime Claims R C 3 (a) (i)

[xv] USCS Admiralty and Maritime Claims R C 3 (a) (ii)

[xvi] USCS Admiralty and Maritime Claims R E(9)(b)(i)

[xvii] Wight v. Maxwell, 4 Mich. 45, 59 (Mich. 1855)

[xviii] Lott v. Goodyear Aerospace Corp., 1976 U.S. App. LEXIS 13256 (6th Cir. 1976)

[xix] Pride Shipping Corp. v. Tafu Lumber Co., 898 F.2d 1404 (9th Cir. Wash. 1990)

[xx] Lewis v. United States, 812 F. Supp. 620 (E.D. Va. 1993)

[xxi] Evergreen Int’l (USA) Corp. v. Standard Warehouse, 33 F.3d 420 (4th Cir. S.C. 1994)

[xxii] Lloyd v. Gill, 406 F.2d 585 (5th Cir. Fla. 1969)

[xxiii] Daniels Towing Service, Inc. v. Nat Harrison Associates, Inc., 432 F.2d 103 (5th Cir. Fla. 1970)

[xxiv] 28 USCS § 1257


Inside Process and Pleading