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Constitutionality of Arrest and Attachment

In the maritime industry assets are constantly in motion, litigants are often of alien nationality, and a cause of action may arise virtually anywhere in the world.  In these circumstances, summary seizure of assets and/or in rem arrest have been necessary for security and for jurisdictional purposes.  These procedures are obviously very burdensome on owners, and new doctrines of procedural due process, specifically that announced in Shaffer v. Heitner 433 U.S. 186 (1977) call them into question.  The constitutionality of admiralty arrest and attachment procedures concludes that they are constitutionally deficient.

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 preseizure judicial hearing.  Arrests without prior notice under the rule governing in rem actions are constitutional, because the “exigent circumstances” exception permits prenotice seizure where, as in admiralty, 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.  Notwithstanding this, the plaintiff has the burden in a post arrest hearing to show that such circumstances existed.

In the context of maritime attachment, procedural due process does not require the posting of a preattachment bond.  If the basis of jurisdiction be a cause of action otherwise justiciable in admiralty, then, notwithstanding anything herein to the contrary, the party claiming to be aggrieved may begin his proceeding hereunder by libel and seizure of the vessel or other property of the other party according to the usual course of admiralty proceedings, and the court shall then have jurisdiction to direct the parties to proceed with the arbitration and shall retain jurisdiction to enter its decree upon the award[i].

[i] 9 USCS § 8

Inside Constitutionality of Arrest and Attachment