A Rule-Based Bond Preempting Vessel Arrest

摘要

Practitioners of maritime law and the courts before which they appear often find themselves in the churning sea of eleventh-hour vessel arrests. The Clerk of Court receives and files the emergency motion filed on shortened time. There is no time to lose. If the vessel sails, the suitor will be left without security. This could mean, for example, that a catastrophically injured seaman may be denied forever the recovery of damages to which he is rightfully entitled. Conversely, a motion for an emergency hearing to post a bond must be had within the hour because, for example, if the ship does not sail a million dollars will be lost when cruise passengers have their vacations ruined, or a limited opportunity to harvest the sea's bounty is missed. In such circumstances, all other court business stops. The judge and personnel of the court assisting him scramble to accommodate these urgent and very serious interests. Commerce is interrupted and other expenses are incurred. All too often these scenarios present themselves on Friday afternoon. Does it have to be this way? No. There is nothing in the law that requires a defendant to wait until a vessel is arrested before submitting to the court's jurisdiction and posting a bond to avoid a vessel arrest. There is, however, no rule to provide the litigants and the courts with a procedural road map in such situations. Moreover, the absence of such a rule leaves maritime lawyers unalerted to the possibility of so proceeding. True, such a process may reduce some leverage for suitors in admiralty. But the purpose of vessel arrests is to provide security, not tactical advantage. Proposed below is a supplemental rule of federal civil procedure that could ease some of the strain on marine commerce and the admiralty courts. Readers are encouraged to email or write the Editor of the Journal of Maritime Law and Commerce (at the addresses inside the front cover) with comments on the proposed rule, for publication in a future issue.