Maritime Attachment
Maritime Attachment is a powerful admiralty remedy designed for a practical problem that has existed throughout maritime trade: a maritime claimant may have a valid claim, but the defendant may be difficult to locate, serve, or bring before a court. Ships trade internationally, Shipowners may operate through complex corporate structures, and maritime transactions frequently involve parties from different countries. A claimant may know that money is owed, but may not know where the Shipowner, Charterer, trader, or other maritime defendant can be sued effectively. Maritime law developed Maritime Attachment to deal with that problem.In simple terms, Maritime Attachment allows a claimant to attach property belonging to a maritime defendant when that defendant cannot be found within the relevant judicial district. The attached property may then give the court quasi in rem jurisdiction over the defendant and may also provide security for the claim. This is especially important in shipping because assets are mobile, corporate structures can be difficult to trace, and maritime defendants may have no permanent business presence in the place where the claimant needs to proceed.
The remedy is particularly important in the United States, where Rule B of the Supplemental Rules for Certain Admiralty and Maritime Claims and Asset Forfeiture Actions governs maritime attachment and garnishment. Rule B reflects a traditional maritime approach: if the defendant cannot be found, but the defendant’s property can be found, the court may control that property so that the claimant can pursue the maritime claim.
Maritime Attachment has two (2) main functions:
- Maritime Attachment allows the maritime plaintiff to obtain jurisdiction over a maritime defendant who cannot be found in the district.
- Maritime Attachment creates security from which a later judgment, award, or settlement may be satisfied.
Why Maritime Attachment Exists
Shipping commerce depends heavily on credit. Bunker suppliers, ship repairers, Charterers, Shipowners, cargo interests, agents, terminal operators, and other maritime parties frequently provide services or enter contracts before final payment is received. If defendants could avoid legal process simply by operating through distant offices, offshore companies, or moving ships, maritime credit would become more expensive and less reliable.Maritime Attachment reduces that risk. It allows a claimant to act against property belonging to the defendant when the defendant is not otherwise reachable in the district. The remedy helps bring an otherwise elusive defendant before the court and creates a practical fund or security interest to protect the claimant. Without such a remedy, claimants might have to chase defendants across several countries while ships, cargoes, receivables, and bank funds disappear.
Once property is attached in the United States, the property comes under the control of the United States district court that issued the process. The property may not be sold, transferred, moved, operated, removed from the district, or otherwise dealt with unless the court permits it. This gives the attachment real commercial effect and explains why defendants often move quickly to provide security, challenge the attachment, or negotiate a release.
Maritime Attachment and Maritime Arrest
Maritime Attachment and Maritime Arrest both help claimants enforce maritime claims against defendants who may otherwise be difficult to reach. Both may involve a ship being held under court authority. Both can create strong settlement pressure. However, the legal basis and procedural purpose are not identical.Maritime Arrest is normally an in rem proceeding against a ship. It is usually based on a maritime lien or statutory right of action against the ship itself. The ship is treated as the defendant, and the action is directed against the res. This is why maritime arrest is commonly associated with claims such as necessaries, crew wages, salvage, collision, cargo damage, preferred ship mortgages, and other lien-based claims.
Maritime Attachment is generally connected with an in personam claim against a defendant, but the court obtains quasi in rem jurisdiction by attaching the defendant’s property. The property may be a ship, cargo, funds, charter hire, debt, bank account, or other asset. The attached property does not necessarily have to be connected with the underlying maritime claim. The key point is that the property belongs to the defendant and is found in the district.
For example, a claimant may have a charter party claim against a Shipowner concerning one ship, but attach another ship or a bank account belonging to the same defendant in a different district. The purpose is not to enforce a lien against that particular property. The purpose is to obtain jurisdiction and security for the maritime claim.
Property That May Be Attached
The right of Maritime Attachment is not limited to ships. It can be exercised against tangible or intangible property belonging to the defendant, provided the legal requirements are satisfied. This broad scope is one reason why the remedy is commercially important.TANGIBLE PROPERTY:
- Ship
- Cargo
- Cranes
- Containers
- Trucks
- Cash
- Checks
- Bills of Lading (B/L)
- Bank Account
- Debt in possession of debtor
- Electronic Fund Transfers (EFT)
- Copyrights
- Patents
- Fishing permits
- Lease
- Wages
- Charter Hire
- Deposits
- Royalties
Maritime Garnishment Vs Maritime Attachment
Maritime Garnishment and Maritime Attachment are closely related but should be distinguished. Maritime Attachment usually refers to the court’s control over property in the hands of the defendant, such as a ship owned by the defendant. Maritime Garnishment refers to control over the defendant’s property held by a third party, such as a bank account, debt, charter hire, or other intangible property in the hands of a garnishee.A garnishee is the person or entity that holds property of the defendant. A bank may be a garnishee if it holds the defendant’s account. A Charterer may be a garnishee if it owes charter hire to the defendant. A cargo receiver may be a garnishee if it owes freight. Once served with a proper garnishment order, the garnishee must preserve the property as directed by the court.
If the garnishee fails to hold property that is subject to the order, the garnishee may face liability to the plaintiff and may breach the court order. If the garnishee wrongfully holds property not belonging to the defendant, the garnishee may face complaint from the account-holder or other affected party. This makes maritime garnishment particularly sensitive for banks and commercial debtors.
Effect of Maritime Attachment
Maritime Attachment establishes quasi in rem jurisdiction in a case that is otherwise an in personam claim against a person or company. The court’s power over the defendant exists through the defendant’s property that has been attached. The defendant’s exposure in that attachment proceeding is generally limited to the value of the property attached, unless the defendant separately appears generally or otherwise becomes subject to broader personal jurisdiction.The effect is both jurisdictional and practical. Jurisdictionally, the court obtains power to proceed against the defendant to the extent of the attached property. Commercially, the attachment pressures the defendant to respond because the defendant’s property has been immobilized or frozen. Where the property is a trading ship, the cost of delay may become substantial. Where the property is money, the frozen amount may affect liquidity.
Purpose of Maritime Attachment:
- Maritime Attachment establishes jurisdiction over the defendant or over the defendant’s property so that the maritime dispute can proceed.
- Maritime Attachment provides security for the plaintiff’s maritime claim.
In practice, Maritime Attachments are sometimes used tactically. A claimant may attach property to obtain security, accelerate negotiations, or force a defendant to engage with the dispute. This tactical element does not by itself invalidate the attachment if the legal requirements are satisfied.
Requirements for Maritime Attachment Under Rule B
In the United States, Rule B of the Supplemental Rules for Certain Admiralty and Maritime Claims and Asset Forfeiture Actions sets out the framework for maritime attachment and garnishment. The remedy is available when the required conditions are satisfied.Maritime Attachment is available when:
- The claim is a maritime claim within admiralty jurisdiction.
- Property belonging to the defendant is found within the federal judicial district.
- The defendant is not found within the judicial district for service of process and jurisdictional purposes.
- The procedure is used to support the maritime claim and obtain jurisdiction or security.
The requirement that the defendant is “not found†in the district has two elements. The defendant must not be present in the district for purposes of service of process, and the defendant must not be present for jurisdictional purposes. A defendant with an office, registered agent, sufficient business presence, or proper service address in the district may be able to challenge attachment on this ground.
Applying for a Writ of Maritime Attachment
The procedure for obtaining a Writ of Maritime Attachment resembles the procedure for obtaining a Warrant for Maritime Arrest, but the underlying theory is different. The claimant must first identify a maritime claim against the defendant. The claimant must then determine that property belonging to the defendant is or will be present within a particular judicial district. The claimant must also verify that the defendant cannot be found in that district for Rule B purposes.The plaintiff then applies to the admiralty court by filing a Verified Complaint and requesting the issuance of process for Maritime Attachment or garnishment. The complaint must be verified as true by the plaintiff, not merely by the lawyer. This verification allows the complaint to function in part as sworn support for the attachment application.
The Verified Complaint should set out enough facts to show that the plaintiff has a well-founded maritime claim, that the claim falls within the court’s admiralty jurisdiction, that property of the defendant is within or expected within the district, and that the defendant cannot be found there. The court does not need to decide the entire merits at this stage, but it must be satisfied that the pleading supports the remedy.
The plaintiff’s attorney must also submit an affidavit explaining the efforts made to locate the defendant in the district. This is often called the Attorney’s Affidavit. It must be made under oath and should describe what the attorney actually did to determine whether the defendant could be found in the district.
Attorney’s Affidavit may include statements such as:
- The attorney personally made or directed inquiries into whether the defendant is present in the district.
- The attorney searched corporate records and found no incorporation, qualification to do business, or registered agent for service of process in the district.
- The attorney checked telephone listings or business directories and found no local listing for the defendant.
- The attorney conducted internet searches and found no indication that the defendant maintains a local office or address.
- The attorney identified the defendant’s office or incorporation elsewhere but found no evidence that the defendant can be found in the district.
- Based on the investigation, the attorney believes the defendant cannot be found in the district for Rule B purposes.
MARITIME ATTACHMENT CHECKLIST
- Cover letter to Clerk of Court
- Civil cover sheet
- Filing Fee
- Verified Complaint signed by the claimant
- Documents supporting the claim set out in the Verified Complaint
- Summons
- Affidavit of Counsel stating that the defendant is not found in the judicial district but the property is
- Attorney Certification of Exigent Circumstances
- Request for Order of Issuance of Process of Maritime Attachment
- Draft Order of Issuance of Process of Maritime Attachment
- Process of Maritime Attachment or Garnishment
- Interrogatories to the Garnishee
- Request for Appointment of Special Process Server
- Draft Order Appointing Special Process Server, Civil Cover Sheet, and Process Receipt and Return
- Process Fee
- Receipt of Service of Process
- Letter of Instruction to the Garnishee
- Motion to Appoint Substitute Custodian
- Draft Order Appointing Substitute Custodian
- Letter of Instruction to Substitute Custodian
- Six (6) copies of all documents, where required by local practice
Ex Parte Nature of Maritime Attachment
Applications for Maritime Attachment or Maritime Garnishment are usually handled ex parte, meaning without prior notice to the defendant. The reason is practical. If the defendant is warned that property is about to be attached, the defendant may remove the ship, transfer funds, redirect payment, or otherwise avoid the court’s process.The defendant normally has no opportunity to argue before the order is issued. The defendant may not even know that the application has been filed until the process has been served. This secrecy is one of the reasons courts require a verified complaint, attorney affidavit, and proper compliance with Rule B. The remedy is powerful, so the plaintiff must satisfy the procedural requirements carefully.
Serving the Process of Attachment
Once the court signs the process and related orders, the plaintiff arranges service. If the property is a ship or tangible property on board a ship, service is commonly made by the United States Marshal, Sheriff, Port Police, or other authorized officer depending on the jurisdiction. In the case of intangible property, such as bank funds or debts, service may be made on the garnishee, sometimes by a Special Process Server.Any person at least eighteen (18) years old and not a party may be appointed as a Special Process Server, subject to local practice and court approval. In practice, Special Process Servers may include lawyers or law firm employees trained in serving garnishment orders properly.
Where a ship is attached, the process resembles a ship arrest. When the ship arrives, authorized officers may board with customs and immigration officials or otherwise attend the ship at the dock or anchorage. The documents are delivered to the Ship Master, and copies may be posted in the pilothouse and on the gangway. Once service is completed, the ship is attached and comes under the legal control of the court.
The attached ship cannot move, discharge cargo, shift berth, sail, or conduct operations without court permission. The court may appoint a custodian to supervise the ship. The use of a substitute custodian may reduce expenses compared with custody by marshals or other official personnel. In some cases, the Ship Master may be appointed as substitute custodian. Although the Ship Master is usually employed by the defendant or related interests, appointing the Ship Master can benefit both sides because the Ship Master knows the ship and can help preserve it at lower cost.
Maritime Garnishment of Intangible Property
Maritime Garnishment of intangible property is achieved by serving the Order of Garnishment on the person or entity holding the defendant’s property. The garnishee must hold the property subject to the court’s direction. If the garnishee fails to do so, the garnishee may become liable to the plaintiff and may breach the court order.A garnishment order is generally effective only against property in the hands of the garnishee at the time of service. If the plaintiff serves an order on a bank account, the order usually reaches funds in the account when the order is served. Funds deposited later may be considered after-acquired funds and may not automatically be covered by the original order unless special arrangements or contractual provisions apply.
This creates practical difficulty for banks. If the bank fails to hold funds that were in the account at the time of service, the bank may be accused of violating the garnishment order. If the bank holds funds deposited after service when the order does not cover them, the account-holder may complain that the bank wrongfully froze the funds. Some banks address this risk by including clauses in deposit agreements allowing the bank to hold funds deposited within a defined period after service of garnishment process.
In some maritime garnishment practice, banks and plaintiffs have entered arrangements under which one order delivered at the start of business applies to funds deposited during the business day, where the bank’s deposit agreements allow such treatment. The details depend on local law, banking practice, and the wording of the relevant agreements.
Lawsuit After Maritime Attachment
After property is attached, the defendant’s property has been brought under the court’s jurisdiction, and the defendant has been served with the in personam complaint through the attachment process. The defendant may respond in several ways. The defendant may answer the complaint, challenge the attachment, provide security, seek release of the property, make a limited appearance, negotiate settlement, or decide not to defend and risk default.A Limited Appearance allows the defendant to appear for the purpose of defending the specific attached claim without submitting generally to the court’s jurisdiction for unrelated matters. This is important because a defendant may want to challenge the attachment or defend the claim while limiting exposure to the value of the attached property or to the particular proceeding.
The property owner has a right to a prompt post-attachment hearing. At that hearing, the plaintiff has the burden to show why the attachment should not be vacated. However, the burden is not as heavy as proving the entire claim. The plaintiff usually needs to show that the requirements for maritime attachment or garnishment have been satisfied.
At a post-attachment hearing, the plaintiff must generally show that:
- The complaint sets out a facially valid maritime claim.
- The defendant’s property was found in the judicial district when process was served.
- The defendant was not found in the judicial district for personal jurisdiction or service of process purposes.
Vacating Maritime Attachment
Maritime Attachment cannot normally be defeated simply by arguing that it is unnecessary, unfair, or too aggressive. Courts generally apply Rule B strictly. If the test is satisfied, the attachment is ordinarily granted and maintained unless a limited basis exists for vacatur.Limited circumstances where a court may vacate a maritime attachment include:
- The plaintiff has already obtained sufficient security for the pending claim and further attachment would be excessive.
- The defendant is subject to personal jurisdiction and service of process in a convenient adjacent jurisdiction, making the attachment improper in practical terms.
The existence of a valid maritime claim is essential. A defendant may seek to vacate an attachment by showing that the underlying dispute does not fall within admiralty jurisdiction. Not every dispute involving a ship is a maritime claim. Some ship sale and purchase disputes or ship construction disputes may not qualify as maritime contract claims for Rule B purposes. If the claim is not maritime, the attachment should not stand.
Where the claim is based on a maritime tort, the plaintiff must be ready to show that the tort falls within maritime tort jurisdiction. Generally, the incident must occur on navigable waters or be caused by a ship on navigable waters, and the nature of the incident must bear a relationship to traditional maritime activity with a potential impact on maritime commerce.
The underlying dispute does not need to have a connection with the district where the attachment is sought. The purpose of the attachment is to locate property of the defendant, secure the maritime claim, and obtain jurisdiction through the property. The property’s presence in the district is enough if the Rule B requirements are otherwise met.
A forum selection clause or arbitration clause does not automatically defeat maritime attachment. Parties may have agreed to litigate or arbitrate elsewhere, but attachment can still be used to obtain jurisdiction over property and provide security. If there is a valid choice of forum or arbitration agreement, the attaching court may maintain the attachment but stay the merits of the case so the parties can proceed in the agreed forum.
Likewise, maritime attachment is not automatically vacated merely because the parties are already litigating or arbitrating elsewhere. A claimant may bring a Rule B attachment proceeding in a district where property is found solely to obtain security for a claim being pursued in another forum. In such cases, the court may uphold the attachment and stay further proceedings pending the result of the original litigation or arbitration.
A defendant may also seek attachment in connection with a counterclaim, even where another proceeding is already underway. The court will usually focus on whether the attachment requirements are met, not on the tactical motive. However, courts are unlikely to allow attachment to be used simply as a device to transfer the entire dispute to a different forum contrary to an agreed forum or existing proceeding.
Role and Duties of a Garnishee
A garnishee may challenge an order of garnishment at a prompt post-attachment hearing. The garnishee may argue that the property is not property of the defendant, that the garnishee does not hold the property, or that the property is otherwise not subject to attachment.The garnishee must usually answer the Verified Complaint and any interrogatories served with the garnishment order. Unless extended by the court, answers may be due within twenty-one (21) days. The garnishee may admit that it holds the property and may pay the property into court. This protects the garnishee from competing claims while allowing the court to control the asset.
Interrogatories served on a garnishee are subject to ordinary discovery principles. The garnishee must generally disclose non-privileged information relevant to the matters in the Verified Complaint. The questions often focus on the amount and nature of intangible property held by the garnishee and on the garnishee’s knowledge of other assets belonging to the defendant.
Unless the garnishee has an agreement with the defendant providing for reimbursement, the garnishee may have to bear its own costs of responding to garnishment. Some bank deposit agreements require the account-holder to indemnify the bank for legal costs incurred in responding to garnishment or attachment orders.
Rules Governing Maritime Attachment and Maritime Garnishment
Laws and procedures for Maritime Attachment or Maritime Garnishment are found in:- Federal Rules of Civil Procedure
- Supplemental Rules for Certain Admiralty and Maritime Claims and Asset Forfeiture Actions, especially Rules B and E
- Local Admiralty Rules governing maritime attachment and garnishment procedures
Liability for Improper Maritime Attachment
If Maritime Attachment is vacated, the defendant may attempt to claim damages for wrongful attachment. However, damages are not automatically awarded merely because the attachment is set aside. Courts generally require serious misconduct by the plaintiff or plaintiff’s counsel.Damages for improperly attaching property may be granted where the court finds:
- Bad faith
- Malice
- Gross Negligence
- Attorney Misrepresents Facts
Agreement to Release Maritime Attached Property
Property under Maritime Attachment is often released by agreement once sufficient security is provided. A Shipowner may obtain release of a ship or other tangible property by providing a bond, cash deposit, or LOU (Letter of Undertaking). The purpose is to replace the attached property with security acceptable to the plaintiff.An LOU (Letter of Undertaking) is commonly issued by a P&I Club or insurer. Under the LOU, the plaintiff agrees to release the property, and the defendant or insurer agrees to submit to the jurisdiction or agreed forum and to pay any final judgment or award up to the agreed security amount. Once the LOU is accepted, it becomes a substitute for the attached property.
LOUs benefit both sides. The plaintiff receives security without the expense and uncertainty of keeping the property under custody. The defendant regains use of the ship or asset and avoids continuing port expenses, custodian fees, loss of earnings, bunker consumption, crew costs, and operational disruption. The court also avoids supervising custody for longer than necessary.
If the parties cannot agree on security or if the custody costs will exceed the value of the property, the court may order the property sold. This is especially relevant where the attached property is perishable, expensive to maintain, declining in value, or insufficient to justify continuing custodial expense. For intangible property, the garnishee may hold the property subject to court order or may pay it into court.
Counterclaims, Default, and Limited Appearance
Once a Maritime Attachment case proceeds under the court’s admiralty jurisdiction, the defendant has several strategic options. The defendant may bring counterclaims and join related issues or parties if permitted by the rules. Alternatively, the defendant may make a Limited Appearance solely to challenge the attachment or defend the particular claim without submitting generally to unrelated jurisdiction.The defendant may also decline to litigate and accept the risk of a default judgment. This may occur where the attached property is worth less than the cost of defense or where the defendant does not wish to submit to the forum. However, if the defendant defends the merits, the resulting decision may have binding effect in later proceedings.
A Maritime Attachment case can sometimes be joined with a Maritime Arrest case. The distinction should remain clear:
- Maritime Attachment is an in personam case against a defendant company or individual supported by attachment of property.
- Maritime Arrest is an in rem case against a ship to enforce a maritime lien.
Commercial Importance of Maritime Attachment
Maritime Attachment is more than a technical court remedy. It has major commercial value. It can convert an unsecured maritime claim into a secured claim. It can prevent a defendant from ignoring the claimant. It can support arbitration or litigation in another forum. It can create settlement pressure and protect the claimant against asset movement.For Shipowners and Charterers, the risk of attachment must be taken seriously. A ship may be delayed unexpectedly if the corporate owner or affiliated defendant has unresolved maritime liabilities. A bank account, freight receivable, charter hire stream, or cargo interest may also be frozen. Corporate structures should therefore be understood, claims should be managed promptly, and contractual obligations should not be ignored merely because the claimant is located in another country.
For claimants, attachment must be used carefully. The remedy is powerful, but it requires a valid maritime claim, proper identification of property, accurate investigation of the defendant’s presence in the district, and compliance with procedural rules. A rushed or inaccurate application can lead to vacatur and possible exposure to damages in cases of bad faith, malice, gross negligence, or misrepresentation.
Conclusion
Maritime Attachment is a distinctive admiralty remedy that allows a maritime plaintiff to obtain jurisdiction and security when a maritime defendant cannot be found in the district but the defendant’s property is present there. It is especially important in shipping because ships, funds, cargoes, and receivables move quickly, while ownership and corporate structures may be complex.The remedy differs from Maritime Arrest. Arrest is usually an in rem proceeding against a ship based on a maritime lien. Attachment is typically an in personam claim supported by quasi in rem jurisdiction over the defendant’s property. The attached property may be unrelated to the underlying claim, provided it belongs to the defendant and is found in the district.
Maritime Garnishment extends the same practical concept to property held by third parties, such as bank accounts, debts, charter hire, or other intangible assets. Garnishees must respond carefully because they may face liability if they fail to hold attached property or if they wrongfully hold property not covered by the order.
Rule B attachment can be used even where arbitration or another forum has been agreed, and even where litigation or arbitration is already underway elsewhere. In those cases, the court may maintain the attachment as security while staying the merits for decision in the agreed forum.
For maritime claimants, Maritime Attachment provides a practical method for protecting claims in an international industry where defendants and assets are often difficult to reach. For maritime defendants, it is a reminder that property entering a judicial district may be exposed to court control if unresolved maritime liabilities exist. Properly used, Maritime Attachment supports maritime commerce by balancing mobility and credit with enforceable legal responsibility.