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Necessity for Postseizure Hearing

With respect to procedural due process requirements, there is no basis for distinction between the context of in personam maritime attachments and the context of in rem maritime arrests.  Therefore, the procedures must be analyzed in accordance with the maritime procedural requirements.  Due process does not require that an owner be given notice or a hearing prior to the attachment of his or vessel.  The justification for failing to provide notice or a hearing prior to the arrest of a vessel is that, if notice or a pre-seizure hearing is provided, there is a risk that the vessel will leave the jurisdiction. prior to obtaining the arrest of a vessel, that the vessel is mobile and thus capable of leaving the jurisdiction.  This determination in itself would have virtually the same consequences that notice and a pre-seizure hearing would entail.

In order to satisfy due process in the absence of pre seizure notice or hearing, the claimant must have the right to appear and have a full post seizure hearing regarding the validity of the seizure.  Accordingly, the Supplemental Admiralty Rules provide for prompt notice and a hearing where the plaintiff is required to show cause why the arrest or attachment should not be vacated.  If the warrant or writ issued without prior judicial authorization, because of exigent circumstances, the plaintiff has the burden to show at this hearing that the exigent circumstances existed.

The failure of a district court to hold an immediate post seizure hearing at the request of a person who establishes a right to defend against the arrest of a vessel is a denial of procedural due process.  However, an owner does not demonstrate that it was deprived of a post arrest hearing unless it produces evidence that the proceeding had was not in fact an appropriate hearing, since the rules do not specify what form the hearing must follow.

Inside Necessity for Postseizure Hearing