In the maritime and international commercial practitioner’s toolbox, obtaining security (typically in the form of an arrest and attachment) are critical tools which can significantly enhance a client’s negotiating position and eliminate concerns about payment down the road. At the outset of any serious case where our client is the claimant, we consider whether a such a provisional remedy might be available in order to secure the claim.
Under maritime law vessels are liable in rem for both maritime torts and breaches of contract, and claims subject to both litigation and arbitration can be initiated with an arrest under appropriate circumstances. Under U.S. law, maritime liens on vessels also exist in favor of suppliers of necessaries, but depending on which side of the fence our client sits, can be subject to challenge if the services do not fit within the parameters of this security device. Obtaining security early on in a case avoids an eventual empty victory, where a favorable judgment or arbitration award is obtained, but cannot be satisfied. Whether a vessel arrest is an appropriate course of action must be decided on a case by case basis. Our firm has the experience and capability to effectively pursue vessel arrests where warranted, and challenge them where implemented against a client.
Rule B attachments are unique to maritime law and are a product of the supplemental admiralty rules of the Federal Rules of Civil Procedure. Under Rule B the assets of a defendant in a maritime case may be attached if the defendant cannot be found in the federal judicial district where the action has been commenced. While electronic funds transfers in the possession of intermediary banks are no longer attachable, all other traditional forms of property (bank accounts, bunkers and, most importantly, debts) remain subject to a Rule B attachment action. The ex parte nature of the Rule B process makes it a particularly effective means of obtaining security for a claim. Our office has vast experience in these proceedings, having successfully attached assets in hundreds of cases over the years, and equally, having sought and obtained vacatur for clients whose assets have been wrongfully seized.
In addition to maritime remedies, attachments in non-maritime commercial cases are also available under the New York state mechanisms, which can prove an equally valuable tool where security in large commercial cases serves the same purposes noted above. We routinely secure (and defend against) these alternative forms of security mechanisms available under New York State law.