http://www.offshorewindsblog.com/files/2013/10/canstockphoto142079381-300x198.jpg “A ship may be here today and gone tomorrow, not to return for an indefinite period, perhaps never. Assets of its owner . . . within the jurisdiction today, may be transferred elsewhere or paid off tomorrow.”[1] This problem, aptly described by the Ninth Circuit and all too familiar to those transacting business in the maritime industry, constitutes one of the primary justifications for the centuries-old doctrines of maritime attachment and arrest. Both maritime attachment and arrest provide a claimant, who might otherwise be left without a remedy, with the important ability to obtain pre-judgment security and, practically speaking, force the defendant to respond to a suit.[2] However, the doctrines are distinct, and the distinction is often lost on the unfamiliar.

To utilize maritime arrest, the claimant must have a maritime lien on the property to be seized.[3] A maritime lien can arise in a number of situations, including the provision of necessaries to a vessel (such as bunkers, supplies, repairs, or any other goods and services that benefit the vessel), wages of the master and crew, damages arising from maritime torts and contract maritime liens.[4] “Although the property to be arrested usually is a vessel, any property that is subject to a maritime lien can be arrested, including intangible property . . .”[5] Once a claimant can establish that property subject to a maritime lien can be found within the territorial district of a federal court, the claimant can have that property seized by the United States Marshal.[6] Further, the owner of the seized property is only entitled to its release upon posting adequate security with respect to the lien amount. Alternatively, the seized property can be sold to satisfy the lien; however, if the amount received is insufficient to satisfy the lien, the owner of the property is not liable for the balance because the action is solely against the seized property, not the owner.[7]

Like maritime arrest, maritime attachment can also be utilized for the pre-judgment seizure and potential sale of the debtor’s property to satisfy a judgment.[8] Beyond this basic similarity, however, maritime attachment and arrest differ significantly. Maritime attachment is, on the one hand, broader than maritime arrest. It is ostensibly available to anyone with a maritime-based claim. Further, any property belonging to the debtor, which is found within the territorial district of a federal court, is subject to attachment.[9] Thus, unlike with maritime arrest, the property need not have any relationship with the claim itself.[10] Further, maritime attachment allows a claimant to obtain a personal judgment for the full sum due against the owner of seized property, and the owner remains liable for the balance of the judgment if the property seized is insufficient to satisfy it.[11] On the other hand, maritime attachment is more limited than maritime arrest because it is only available to a claimant who can establish that the debtor is not subject to personal jurisdiction within the applicable judicial district.[12]

While the distinctions between maritime attachment and arrest are important, and the use of these powerful tools must be analyzed carefully, both remain vital resources for anyone transacting business in the maritime industry. This is especially true given the ease with which assets, especially vessels, can be tracked and located in today’s marketplace.

Photo Text: There are important differences between maritime arrest and attachment.

[1] George A. Rutherglen, The Contemporary Justification for Maritime Arrest and Attachment, 30 Wm. & Mary L. Rev. 541 (1989) (quoting Polar Shipping Ltd. v. Oriental Shipping Corp., 680 F.2d 627, 637 (9th Cir. 1982)).

[2] See William Tetley, Arrest, Attachment , and Related Maritime Law Procedures, 73 Tul. L. Rev. 1895, 1928-29 (1999).

[3] Ravenna Tankers Pte., SRL v. Omni Ships Pte. Ltd., Nos. 13–127, 13–221, 2013 WL 2153544, *4 (E.D. La. May 15, 2013).

[4] See Tetley, supra note 2, at 1929-30.

[5] Ravenna Tankers, 2013 WL 2153544, at *4.

[6] See Tetley, supra note 2, at 1933.

[7] Id.

[8] Belcher Co. of Alabama, Inc. v. M/V Maratha Mariner, 724 F.2d 1161, 1165 (5th Cir. 1984).

[9] Winter Storm Shipping, Ltd. v. TPI, 310 F.3d 263, 268 (2d Cir. 2002) (overruled on other grounds by Shipping Corp. of India Ltd. v. Jaldhi Overseas Pte. Ltd., 585 F.3d 58 (2d Cir. 2009)).

[10] Id.

[11] Belcher Co. of Alabama, 724 F.2d at 1165.

[12] Rule B of the Supplemental Rules for Admiralty and Maritime Claims.