773 F.

2d 1528
1986 A.M.C. 1

SCHIFFAHARTSGESELLSCHAFT LEONHARDT & CO.,

Plaintiff-Appellant,
v.
A. BOTTACCHI S.A. DE NAVEGACION, DefendantAppellee.
No. 83-8019.

United States Court of Appeals,

Eleventh Circuit.
Oct. 1, 1985.

Robert S. Glenn, Jr., Savannah, Ga., for plaintiff-appellant.

Lamar Walter, Savannah, Ga., for defendant-appellee.
Theodore A. LeGros, Seattle, Wash., David R. Owen, Baltimore, Md., for
amicus curiae, Maritime Law Ass'n of U.S.
Appeal from the United States District Court for the Southern District of
Georgia.
Before GODBOLD, Chief Judge, RONEY, TJOFLAT, HILL, FAY,
VANCE, KRAVITCH, JOHNSON, HENDERSON, HATCHETT,
ANDERSON and CLARK, Circuit Judges.
TJOFLAT, Circuit Judge:

I.
1

On May 25, 1982 the clerk of the U.S. District Court for the Southern District
of Georgia issued a writ of attachment against bunkers and stores owned by the
appellee, A. Bottacchi S.A. de Navegacion ("Bottacchi"), and located aboard
the vessel M/V Puntas Malvinas. The writ was sought by the appellant,
Schiffahartsgesellschaft Leonhardt & Co. (G.M.B.H. & Co.) ("Leonhardt").

This appeal questions the constitutionality of the maritime attachment

procedures employed by the district court.
2

Bottacchi, an Argentine corporation, time-chartered1 the M/V Barbara

Leonhardt from Leonhardt pursuant to a New York Produce Exchange charter
party dated March 26, 1982.2 On or about April 14, 1982, while operating
under the charter party on a voyage from St. Johns, Canada, to Buenos Aires,
Argentina, the M/V Barbara Leonhardt and her cargo were damaged, allegedly
as a result of Bottacchi's negligence, during heavy weather. Upon arrival of the
vessel in Buenos Aires, Leonhardt was required to post security of $450,000 in
favor of various cargo interests to avoid arrest of the ship. Alleging that it was
entitled to indemnity or contribution from Bottacchi for any damages it might
be adjudged to owe the cargo interests, Leonhardt, on May 24, 1982, filed a
complaint in admiralty, and petition to compel arbitration, in the Southern
District of Georgia and sought the issuance of a summons with process of
attachment against the M/V Puntas Malvinas, which was docked in Savannah,
Georgia, and was listed in the most recent supplement of Lloyd's Register of
Shipping as being owned by Bottacchi. In accordance with Rule B(1) of the
Supplemental Rules for Certain Admiralty and Maritime Claims to the Federal
Rules of Civil Procedure ("Rule B(1)"), Leonhardt's attorney verified the
complaint since none of Leonhardt's officers were present in the district. In
addition, pursuant to Rule B(1) the lawyer also submitted an affidavit that to the
best of his belief Bottacchi could not be found within the district.

Although Bottacchi was listed in Lloyd's Register as the owner of the vessel,
documents presented by Bottacchi's attorney the following day revealed that
Bottacchi did not own the vessel3 but rather operated under a bareboat charter.4
Under this arrangement Bottacchi owned only certain bunkers and stores
aboard the ship. Leonhardt immediately amended its complaint and prayed for
issuance of process of attachment against the bunkers and stores. On May 25,
1982, the clerk of court ordered the U.S. Marshal to initiate process. Before
executing the writ of attachment, the marshal had notified the ship's local
husbanding agent of the impending seizure. The agent immediately contacted
the attorney in Savannah who represented Bottacchi's interests. Bottacchi,
pursuant to Supplemental Rule E(5), effectuated an immediate release of the
property after posting security for Leonhardt's claims.

On May 26, 1982, the district court convened to hear Bottacchi's objections to
the attachment. Bottacchi at this time argued that Rule B(1) violated due
process in failing to provide adequate judicial supervision of the attachment
process and that, because the rule constituted the sole authority for the court's
issuance of the writ, the writ had to be dissolved. Upon hearing this objection,

the court directed Bottacchi to incorporate the objection in a formal motion, and
on June 4, 1982, Bottacchi moved the court, pursuant to Supplemental Rule
E(8), to dismiss the complaint and quash the process of attachment. The court
heard the motion on July 22, 1982. Noting that Bottacchi not only had
preseizure notice but also enjoyed an immediate postseizure hearing, the court
found that Bottacchi had been accorded due process under the circumstances.5
The court, however, proceeded to hold Rule B(1) invalid under the due process
clause, citing the Supreme Court's decision in Sniadach v. Family Finance
Corp., 395 U.S. 337, 89 S.Ct. 1820, 23 L.Ed.2d 349 (1969), and a line of
similar cases. The constitutional deficiency resulted from the absence of: (1)
procedural safeguards in place of preseizure notice and hearing; and (2) a
prompt postattachment hearing. Schiffahartsgesellschaft Leonhardt & Co. v. A.
Bottacchi S.A. de Navegacion, 552 F.Supp. 771, 781-84 (S.D.Ga.1982).
5

On May 29, 1984, a panel of this court reversed the district court. 732 F.2d
1543 (11th Cir.1984). The panel held that because Bottacchi was accorded due
process in the particular case, the lower court erred in proceeding to determine
the facial constitutionality of Rule B(1). Id. at 1549. We have taken the case en
banc to address the confusion that appears to have arisen in the district courts
over the relationship between Rule B(1) and the courts' inherent admiralty
powers. The court below, as have others,6 viewed too narrowly its traditional
maritime powers and, believing that its sole authority to issue a writ of
attachment derived from Rule B(1), found it necessary to pass on the facial
constitutionality of the rule. We find that the district courts should take a more
expansive view of their power to fashion admiralty procedures and that, as a
result, the constitutionality of Rule B(1) need not, and should not, be reached.

II.
6

We note at the outset that, if the district court had the power to issue the writ of
attachment independent of its authority derived under Rule B(1), a finding that
Bottacchi was accorded due process would make a ruling on the facial
constitutionality of Rule B(1) unnecessary and therefore unwarranted. We
conclude that the district court had such power.

The Constitution established a separate jurisdictional base in the federal courts

for admiralty cases in article III, section 2, clause 1,7 which extends the judicial
power of the United States "to all Cases of admiralty and maritime
Jurisdiction."8 This grant of jurisdiction implies the adoption of the then
existing maritime law as the law of the United States:

As there could be no cases of "admiralty and maritime jurisdiction," in the

absence of some maritime law under which they could arise, the provision
presupposes the existence in the United States of a law of that character. Such a
law or system of law existed in colonial times and during the Confederation,
and commonly was applied in the adjudication of admiralty and maritime cases.
It embodied the principles of the general maritime law, sometimes called the
law of the sea, with modifications and supplements adjusting it to conditions
and needs on this side of the Atlantic. The framers of the Constitution were
familiar with that system and proceeded with it in mind. Their purpose was not
to strike down or abrogate the system, but to place the entire subject--its
substantive as well as its procedural features--under national control, because of
its intimate relation to navigation and to interstate and foreign commerce. In
pursuance of that purpose the constitutional provision was framed and
adopted.... After the Constitution went into effect, the substantive law
theretofore in force was not regarded as superseded or as being only the law of
the several states, but as having become the law of the United States....
9

Panama Railroad v. Johnson, 264 U.S. 375, 385-86, 44 S.Ct. 391, 393, 68 L.Ed.
748 (1924). Congress, however, retained the power to alter substantive and
procedural maritime rules:9 "When the Constitution was adopted, the existing
maritime law became the law of the United States 'subject to power in Congress
to alter, qualify or supplement it as experience or changing conditions might
require.' " Detroit Trust Co. v. Barlum S.S. Co., 293 U.S. 21, 43, 55 S.Ct. 31,
38, 79 L.Ed. 176 (1934) (quoting Panama Railroad, 264 U.S. at 386, 44 S.Ct. at
393).10 Federal courts, then, are empowered to apply maritime procedure and
law as it existed at the time of the Constitution's adoption, with such
modifications as changing needs and circumstances require,11 subject to
congressional alteration of that law.

10

The Supreme Court in Manro v. Almeida, 23 U.S. (10 Wheat.) 473, 6 L.Ed. 369
(1825), held that maritime attachment was a part of American jurisprudence at
the time the Constitution was adopted. Manro sought to recover for funds
wrongfully taken by Almeida while on board a ship off the Capes of the
Chesapeake. Almeida left the country and a writ of attachment was issued
against certain of his property. The district court dismissed Manro's libel on the
demurrer of Almeida and restored the goods attached. The Supreme Court, on
appeal, limited its inquiry to "whether the court below erred in refusing to the
libellant the process of attachment on the case made out in his libel." 23 U.S.
(10 Wheat.) at 484. The central issue before the Court was whether the remedy
of attachment was available in admiralty to require the presence of a respondent
located outside the court's jurisdiction. 23 U.S. (10 Wheat.) at 487-88.

11

In answering the question in the affirmative, the Court reviewed the history of

attachment in American admiralty law in light of the Process Act of 1789,12

which required federal courts to apply civil rather than common law13 in
maritime cases, and the Process Act of 1792,14 which directed courts to employ
procedures "according to the principles, rules and usages, which belong to
courts of admiralty, as contradistinguished from courts of common law." See 23
U.S. (10 Wheat.) at 487-92. The Court concluded that attachment was clearly
established in American admiralty law and reversed the lower court:
12

Upon the whole, we are of opinion, that for a maritime trespass, even though it
savors of piracy, the person injured may have his action in personam, nd
compel appearance by the process of attachment on the goods of the trespasser,
according to the forms of the civil law, as engrafted upon the admiralty
practice. And we think it indispensable to the purposes of justice, and the due
exercise of the admiralty jurisdiction, that the remedy should be applied, even
in cases where the same goods may have been attachable under the process of
foreign attachment issuing from the common-law courts.

13

23 U.S. (10 Wheat.) at 495-96. See also Grand Bahama Petroleum Co. v.
Canadian Transportation Agencies, Ltd., 450 F.Supp. 447, 453
(W.D.Wash.1978).

14

In 1842 Congress empowered the Supreme Court to promulgate maritime

rules,15 the first set of which was adopted by the Court in 1844. Rule 2 of the
former Rules of Practice for Admiralty and Maritime Cases provided for
attachment when the defendant could not be located within the district.16
Although the Rules of 1844 were superseded by the Admiralty Rules of 1920,
no substantial change was made in Rule 2. Current Rule B(1) is modeled after
Rule 2 and was intended to preserve the essential elements of Rule 2.17 These
rules promulgated by the Supreme Court and enacted by Congress constitute
the only statutory restrictions on maritime attachment placed on a federal
district court's power to apply admiralty law and procedure. Clearly, however,
these rules were not intended to be the exclusive source of maritime procedure
available to the courts:

15

No attempt is here made to compile a complete and self-contained code

governing these distinctively maritime remedies. The more limited objective is
to carry forward the relevant provisions of the former Rules of Practice for
Admiralty and Maritime Cases, modernized and revised to some extent but still
in the context of history and precedent. Accordingly, these Rules are not to be
construed as limiting or impairing the traditional power of a district court,
exercising the admiralty and maritime jurisdiction, to adapt its procedures and
its remedies in the individual case, consistently with these rules, to secure the

just, speedy, and inexpensive determination of every action.

16

Supplemental Rule A advisory committee note.

17

We view the procedures employed in the present case, including the

postattachment hearing, as entirely consistent with Rule B(1). For this reason
we find that the court had the authority, under its inherent power to apply
traditional maritime law, to issue the writ of attachment; it need not have relied
on any grant of authority under Rule B(1). We therefore must dispose of the
case before us by examining fifth amendment procedural due process in light of
the procedures utilized by the district court.

III.
A.
18

In Sniadach the Court struck down a Wisconsin garnishment statute which "as
a practical matter [drove] a wage-earning family to the wall." 395 U.S. at 34142, 89 S.Ct. at 1823. In this "most inhumane" setting Justice Douglas, speaking
for the Court, quickly concluded that the failure to provide a prejudgment
garnishment hearing violated the wage earner's procedural due process rights.
395 U.S. at 342, 89 S.Ct. at 1823.

19

Three years later the Court, in Fuentes v. Shevin, 407 U.S. 67, 92 S.Ct. 1983,
32 L.Ed.2d 556 (1972), reaffirmed the general need for notice and an
opportunity for a hearing prior to depriving an individual of a significant
property interest. The Court struck down Pennsylvania and Florida statutes
providing for the issuance of a writ of replevin on an ex parte application,
accompanied by a security bond.18 The case arose in a consumer financing
context. Common sense dictates that due process requirements involving
essentials such as wages and important consumer goods19 cannot be
automatically imposed on maritime transactions.

20

Two years after Fuentes, the Court in Mitchell v. W.T. Grant Co., 416 U.S. 600,
94 S.Ct. 1895, 40 L.Ed.2d 406 (1974), upheld a Louisiana sequestration statute
which did not require preseizure notice or hearing. In its decision, which Justice
Powell in concurrence described as a withdrawal from the broad principles
articulated in prior cases, id. at 623, 94 S.Ct. at 1908, the Court refused
woodenly to apply due process requirements to the situation before it. Rather, it
engaged in a balancing analysis in which the rights of a seller of personal
property under a conditional sales contract were weighed against those of a
buyer in default. Id. at 608-09, 94 S.Ct. at 1900-01. In this case, as required by

statute, the sequestration was ordered by a judge upon the filing of a verified
complaint by the creditor. In addition, the vendor was required to post bond.
The court held a hearing on the debtor's motion to dissolve the writ of
sequestration five weeks after it was executed. Stressing the possibility that the
buyer upon notification of the proceeding might destroy or sell the property, the
Supreme Court upheld the statute. It further noted that "[t]he usual rule has
been '[w]here only property rights are involved, mere postponement of the
judicial inquiry is not a denial of due process, if the opportunity for ultimate
judicial determination of liability is adequate.' " Id. at 611, 94 S.Ct. at 1902
(quoting Phillips v. Commissioner, 283 U.S. 589, 596-97, 51 S.Ct. 608, 611, 75
L.Ed. 1289 (1931)). In light of the other safeguards required by the statute, the
Court found that the sequestration provided procedural due process even in the
absence of presequestration notice or hearing.
21

Finally, in North Georgia Finishing, Inc. v. Di-Chem, Inc., 419 U.S. 601, 95
S.Ct. 719, 42 L.Ed.2d 751 (1975), the Court struck down a Georgia
garnishment statute. Under the statute the writ of garnishment was issuable by
the clerk upon the receipt of an affidavit by the creditor. The affidavit had only
to contain conclusory allegations. Further, the statute failed to provide an early
postgarnishment hearing.

22

This Supreme Court tetralogy defines the limits of procedural due process in a
consumer context. With the exception of North Georgia Finishing, which
involved a corporate bank account, the cases dealt with the attachment of wages
or essential household goods, a situation clearly distinguishable from the
intricacies of admiralty operations.20 Maritime needs and requirements differ
substantially from those in the commercial context in which North Georgia
Finishing arose. The issue, then, is whether due process is flexible enough to
accommodate these differences.

B.
23

Due process requires at a minimum adequate notice and the opportunity to be

heard. Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 313, 70
S.Ct. 652, 656-57, 94 L.Ed. 865 (1950). These requirements, however, are the
result of particular needs in particular contexts; they resist mechanical
application. As Justice Frankfurter wrote in Joint Anti-Fascist Refugee
Committee v. McGrath, 341 U.S. 123, 162-63, 71 S.Ct. 624, 643-44, 95 L.Ed.
817 (1951) (concurring):

24
"[D]ue
process" is compounded of history, reason, [and the] past course of
decisions.... Due process is not a mechanical instrument. It is not a yardstick. It is a

process. It is a delicate process of adjustment inescapably involving the exercise of

judgment by those whom the Constitution entrusted with the unfolding of the
process.
25

....

26 Court has responded to the infinite variety and perplexity of the tasks of
The
government by recognizing that what is unfair in one situation may be fair in
another.
27

Even when setting the parameters of due process in the Sniadach line of cases,
the Court acknowledged that:

28 requirements of due process of law "are not technical, nor is any particular form
The
of procedure necessary." Due process of law guarantees "no particular form of
procedure; it protects substantial rights." "The very nature of due process negates
any concept of inflexible procedures universally applicable to any imaginable
situation."
29

Mitchell v. W.T. Grant Co., 416 U.S. at 610, 94 S.Ct. at 1901 (citations
omitted). With this in mind, we turn to an examination of the distinctive nature
of admiralty and the requirements of due process in a maritime context.

30

Admiralty law exists because man sails the seas. And while en route, he has
encountered difficulties unique to the nautical world. In response to these
problems, a body of maritime law has emerged. These rules are products of
ports and shipping lanes, addressing the special needs which arise there.

31

As we noted earlier, admiralty is a separate body of substantive and procedural

law, distinct from common law. Uniquely maritime concepts prove the point.
The maritime lien is "peculiar to the law of admiralty without a clearly
analogous counterpart in the traditional land-based common law of liens."
Bethlehem Steel Corp. v. S/T Valiant King, 1977 AMC 1719, 1722
(E.D.Pa.1974). See also G. Gilmore & C. Black, The Law of Admiralty 586-89
(2d ed. 1975). Limitation of liability, a statutory scheme, 21 permits a ship owner
to limit his liability in certain situations to the value of his vessel or his freight.
The law of general average requires all participants in a venture to contribute to
various losses in proportion to their interests, regardless of fault. See G.
Gilmore & C. Black, supra, at 818-957. Finally, the principle of salvage
rewards a salvor of property in peril with a maritime lien in that property in an
attempt to induce rescue. Id. at 532-85. It is in this distinct realm of admiralty
that the due process ramifications of attachment proceedings must be examined.

32

Maritime attachment is designed to assure a defendant's appearance and to

secure satisfaction if the suit is successful. Swift & Co. Packers v. Compania
Colombiana del Caribe, S.A., 339 U.S. 684, 693, 70 S.Ct. 861, 867, 94 L.Ed.
1206 (1950). The Supreme Court has acknowledged the need for such a
procedure in admiralty:

33

Courts in admiralty are established for the settlement of disputes between

persons engaged in commerce and navigation, who, on the one hand, may be
absent from their homes for long periods of time, and, on the other hand, often
have property or credits in other places. In all nations, as observed by an early
writer, such courts "have been directed to proceed at such times, and in such
manner, as might best consist with the opportunities of trade, and least hinder or
detain men from their employments." ... To compel suitors in admiralty, when a
ship is abroad and cannot be reached by a libel in rem, to resort to the home of
the defendant, and to prevent them from suing him in any district in which he
might be served with a summons or his goods or credits attached, would not
only often put them to great delay, inconvenience, and expense, but would in
many cases amount to a denial of justice.

34

In re Louisville Underwriters, 134 U.S. 488, 493, 10 S.Ct. 587, 589, 33 L.Ed.
991 (1890) (citation omitted). For this reason, courts have rejected claims that
use of attachment procedures to obtain quasi in rem jurisdiction violates
substantive due process as enunciated in Shaffer v. Heitner, 433 U.S. 186, 97
S.Ct. 2569, 53 L.Ed.2d 683 (1977).22 See Trans-Asiatic Oil, Ltd. v. Apex Oil
Co., 743 F.2d 956, 958-60 (1st Cir.1984); Amoco Overseas Oil Co. v.
Compagnie Nationale Algerienne de Navigation, 605 F.2d 648, 654-55 (2d
Cir.1979); Grand Bahama Petroleum Co., 450 F.Supp. at 451-53.

35

In applying the concept of procedural due process to maritime attachment,23 we

must always be aware of the expectations and needs of all parties concerned.
Merchants engaging in maritime commerce "must reasonably expect to be sued
where their property may be found." Amoco Overseas Oil Co., 605 F.2d at 655.
To protect themselves they often join protection and indemnity associations ("P
& I Clubs"), organizations of shipowners, charterers, and other maritime
entities which provide liability and defense coverage for their members. Most P
& I Clubs have commercial correspondents in every major port in the world.24
See generally Reynardson, The History and Development of P & I Insurance:
The British Scene, 43 Tul.L.Rev. 457 (1969). In addition, when security is
required to release a ship from attachment or arrest, underwriters are equipped
to provide a letter of undertaking which pledges their assets to the payment of
the claim. As the Maritime Law Association notes in its Amicus brief, such
letters are generally accepted by the plaintiffs and, in the absence of such

acceptance, underwriters utilize established relations with surety companies

qualified in the attachment court to post formal bonds.25 See generally
Meredith, Fines, Penalties, and Other Miscellaneous Liabilities; Expenses of
Defense; General Conditions and Exclusions; Grounds for Cancellation;
Second Seaman's Policy; Club Letters of Guarantee or Undertaking, 43
Tul.L.Rev. 602, 612-14 (1969).
36

These are protections simply not available to the sort of defendants involved in
the Sniadach line of cases. This difference alone must be a critical factor in
determining the procedural process due a maritime merchant in an attachment
proceeding.

37

In Fuentes, the Supreme Court noted that due process does not require
preattachment notice where the "attachment [is] necessary to secure
jurisdiction." 407 U.S. at 91 n. 23, 92 S.Ct. at 1999 n. 23 (1972). The Court was
clearly concerned that upon learning of the pending proceedings the defendant
might remove his property from the jurisdiction of the court. This possibility is
ever-present in admiralty.

38 need to attach now and notify later is as great now as it ever was, if not greater.
The
A ship can quietly slip its moorings and depart the jurisdiction. It can easily take
with it such tangible property as may be within the jurisdiction. And credits can be
quickly transferred elsewhere.
39

Polar Shipping, Ltd. v. Oriental Shipping Corp., 680 F.2d 627, 637 (9th
Cir.1982). See also Trans-Asiatic Oil, Ltd., 743 F.2d at 962; Amstar Corp. v.
S/S Alexandros T., 664 F.2d 904, 911 (4th Cir.1981). We see no reason to
interpret due process as requiring that the defendant be given time to escape the
jurisdiction of the court. 26

40

Bottacchi claims that the writ of attachment was issued on the basis of
conclusory allegations in Leonhardt's complaint. We disagree. Supplemental
Rule E(2)(a) requires that a plaintiff seeking a writ of attachment "state the
circumstances from which the claim arises with such particularity that the
defendant or claimant will be able, without moving for a more definite
statement, to commence an investigation of the facts and to frame a responsive
pleading." Clearly the complaint was sufficient for due process purposes. While
it is true that the complaint may have been based on hearsay, see Grand
Bahama Petroleum Co., 450 F.Supp. at 458, temporal realities required that this
be so. Time is of the essence in maritime attachment, and it would be
unrealistic to require a creditor's lawyer, who often verifies the complaint, to
undertake an independent investigation to gain first-hand knowledge of the

situation before the ship is once again at sea. Due process cannot require the
impossible.
41

Rule B(1) also requires an affidavit, verified by either the creditor or his
lawyer, that to the best of his knowledge the defendant cannot be located within
the district. The lower court found such an affidavit based on information and
belief meaningless without an account of the ways in which the defendant was
sought. Schiffahartsgesellschaft, 552 F.Supp. at 782-83. As the panel observed,
however,

42is rare, ... that a foreign shipper will be found in the district due to the global
It
nature of maritime shipping and modern communication technology. The growth of
P & I (Property and Indemnity) Clubs, with correspondents in every port of call,
eliminates the need for a ship owner's direct involvement in local disputes.
Furthermore, a debtor residing in the district will likely have an office in the port
city. Attorneys operating under the information and belief approach are
unquestionably required to undertake a telephone or city directory search.
43

Schiffahartsgesellschaft, 732 F.2d at 1548-49. Requiring language in the

affidavit to the effect that the affiant has contacted the office of the Secretary of
State and checked local telephone listings would only result in "more legal
boiler plate." Polar Shipping, 680 F.2d at 639. It would provide little additional
procedural protection to the defendant.

44

The preattachment posting of a bond by the creditor was, and is not practical
and would, again, have provided the debtor little added protection against
improper attachment. Certain types of bonds are already provided for in the
Rules. Under Supplemental Rule E(2)(b) the court may require the creditor to
post security for costs. In addition, under Rule E(7), if a defendant is willing to
go on record that he may suffer damages from an unlawful attachment of his
vessel and files a counterclaim and gives security for the plaintiff's claim, the
court can order counter-security. Calculation of a preattachment bond,
however, would be extremely difficult. If the security were based upon what is
attached, a ship, bank account, or debt, how is the creditor to know the
property's value? See Polar Shipping, 680 F.2d at 641. The amount of the bond
would be equally indeterminable if it were based upon injuries sustained by the
debtor as a result of the attachment. Finally, if the bond were to be set at the
amount of the debt owed to the creditor, it would provide little deterrent for
false claims since in almost all cases in which ships are attached the debt owed
is but a fraction of the cost of the vessel. For these reasons, we find that
procedural due process does not require the posting of a preattachment bond.

45

Finally, a preattachment ex parte hearing and judicial issuance of the writ of

attachment would prove an ineffective tool to discern wrongful attachments;
we, therefore, decline to find it required by the fifth amendment. As this case
readily demonstrates,27 ownership interests in shipping often are shrouded by a
tangled web of legal interests whose identities are impossible for a judge to
discern within the time frame in which writs of attachments must issue. See
Polar Shipping, 680 F.2d at 639. Requiring a judge to play a corporate shell
game may in the long run be unfair to the creditor:

46is questionable whether a judge or magistrate on a pre-arrest basis could fairly

It
consider complicated transactions bearing on the ultimate enforcement of the
asserted maritime lien. A denial of the seizure might effectively dispose of the claim
on the merits without trial. The lienor would then be denied due process under the
Fifth Amendment.
47

Merchants National Bank of Mobile v. Dredge General G.L. Gillespie, 663

F.2d 1338, 1344 (5th Cir. Unit A 1981) (discussing the seizure requirements of
Supplemental Rule C).28

48

In addition to complicated facts, the applicable law may be unfamiliar to district

judges. Although many judges may be familiar with the admiralty law routinely
applied in the federal courts, many attachment cases are based upon the
maritime law of foreign countries with which there may be differences of
opinion among legal experts. See Inter-American Shipping Enterprises, Ltd. v.
T/T Tula, 1982 AMC 951 (E.D.Va.1981) (charter party dispute resolution
required piercing corporate veils in the United States, the Bahamas, Mexico,
and Greece and a determination of the law of the Bahamas). Moreover, in many
maritime jurisdictions judges may not be available at the crucial time and a
convenient place. In Alaska, for instance, a judge may well be in Anchorage,
while a writ of attachment is sought in the distant ports of Juneau and Valdez.
In view of the near impossibility of making an immediate and informed judicial
determination at an ex parte hearing of the appropriateness of an attachment,
and the probable delays that would ensue from requiring such a hearing, we
refuse to find the procedure required by the fifth amendment.29

49

We agree that " '[t]he basic protection required for the debtor is the assurance
of a prompt postgarnishment hearing before a judge.' " Polar Shipping, 680
F.2d at 640 (quoting North Georgia Finishing, 419 U.S. at 611 n. 3, 95 S.Ct. at
725 n. 3 (Powell, J., concurring)). Bottacchi's property was attached on May 25,
1982, and it received a hearing on May 26.30 If there were any procedural
deficiency or injustice in the issuance of the writ, it could have been raised at
that time. An immediate postattachment hearing strikes a workable balance

between the creditor's need to reach the property before it leaves the court's
jurisdiction and a debtor's fear that his property will be unjustly attached. Such
a hearing provides a maritime debtor with the process he is due. See TransAsiatic Oil, Ltd., 743 F.2d at 962-63; Polar Shipping, 680 F.2d at 640-41;
Amstar, 664 F.2d at 912; Merchants National Bank, 663 F.2d at 1344.
C.
50

Due process is too realistic a concept to justify mechanical applications that are
insensitive to the various contexts in which it is used. Admiralty law addresses
unique commercial needs arising from maritime operations; to apply due
process considerations discussed in other commercial or consumer situations to
the present case would be to misconstrue the nature of the concept. The
Sniadach line of cases should be used as a general guideline, not a mold into
which myriad situations must be fitted. We find the concept of due process
sufficiently flexible and the realm of admiralty sufficiently distinct to uphold
the constitutionality of the procedures afforded Bottacchi by the district court in
the exercise of its inherent power to apply maritime law. The lower court erred
in addressing the facial constitutionality of Rule B(1). The judgment of the
district court is, accordingly,

51

REVERSED.

52

JOHNSON, Circuit Judge, dissenting in which VANCE, Circuit Judge joins:

53

On May 25, 1982, Leonhardt's attorneys sought and obtained a writ of

attachment against bunkers and stores owned by Bottacchi, which property was
aboard a ship. In seeking to attach Bottacchi's property, Leonhardt's attorneys
followed the maritime attachment procedures specified in Rule B(1) of the
Supplemental Rules for Certain Admiralty and Maritime Claims to the Federal
Rules of Civil Procedure. In the present case, Bottacchi challenged the
constitutionality of Rule B(1). The majority holds that, although Leonhardt
sought a writ of attachment pursuant to Rule B(1), the attachment procedures
followed by the district court in issuing the writ were derived from the court's
inherent admiralty powers, independent from the statutory powers granted by
Rule B(1). Consequently, the majority does not reach the question of the
constitutionality of Rule B(1). Because I conclude that the district court's power
to issue the writ derived exclusively from Rule B(1), and that Rule B(1)
violates the Due Process Clause of the Fifth Amendment, I dissent.

54

I. Rule B(1) Provided Exclusive Authority For The Writ.

55

In 1966, the Supreme Court promulgated a set of amendments to the Rules of

Civil Procedure, which amendments unified civil and admiralty procedures.
The Supreme Court's promulgating order of February 28, 1966, explicitly
rescinded the Admiralty Rules of 1920 that had been in effect, and stated that
the 1966 amendments "shall govern all proceedings in actions brought
thereafter...." 383 U.S. 1031-32.

56

Rule B(1), governing maritime attachment and garnishment procedures, was

included among the Supplemental Rules for Certain Admiralty and Maritime
Claims that were part of the 1966 amendments. Rule A of the Supplemental
Rules stated that the Supplemental Rules were to apply to the procedure
followed in admiralty and maritime claims with respect to four specific types of
remedies: (1) maritime attachment and garnishment; (2) actions in rem; (3)
possessory, petitory, and partition actions; and (4) actions for exoneration from
or limitation of liability.

57

In explaining the scope of the Supplemental Rules, the advisory committee

indicated that the Rules were not intended to limit or impair the traditional
power of a district court, acting consistently with the Supplemental Rules, "to
secure the just, speedy, and inexpensive determination of every action."
Supplemental Rule A advisory committee note. The majority interprets the
advisory committee note to support the view that the maritime rules "were not
intended to be the exclusive source of maritime procedure available to the
courts." Supra at 1533. It is apparent that the advisory committee sought to
instruct district court judges that the Supplemental Rules did not prevent them
from devising appropriate procedures to cover situations other than the four
covered by the Supplemental Rules. However, the advisory committee note
does not mean that, with respect to actions that are covered by the
Supplemental Rules, district courts are free either to follow or to disregard the
Rules, depending upon what the situation requires.

58

The majority's argument trivializes Rule B(1) into a guideline that may or may
not be followed, depending on whether the district court chooses to resort to its
statutory authority or to its "inherent power to apply traditional maritime law."
Supra at 1533. Contrary to the majority's view, Rule B(1) is now the exclusive
source of authority for a district court to issue a maritime writ of attachment.
Since the present case involved a maritime writ of attachment issued pursuant
to Rule B(1), the majority erroneously avoids addressing appellee's challenge to
the constitutionality of that rule.

59

II. Rule B(1) Violates Due Process.

60

The defendants in the present case argue that Rule B(1) fails to provide
adequate due process protections in the context of a pre-judgment deprivation
of property. See Sniadach v. Family Finance Corp., 395 U.S. 337, 89 S.Ct.
1820, 23 L.Ed.2d 349 (1969); Fuentes v. Shevin, 407 U.S. 67, 92 S.Ct. 1983,
32 L.Ed.2d 556 (1972); Mitchell v. W.T. Grant Co., 416 U.S. 600, 94 S.Ct.
1895, 40 L.Ed.2d 406 (1974); North Georgia Finishing, Inc. v. Di-Chem, Inc.,
419 U.S. 601, 95 S.Ct. 719, 42 L.Ed.2d 751 (1975). A pre-seizure hearing may
be foregone under certain circumstances of an emergency nature, but only
where other protections adequately safeguard the interests of the defendant.
These protections include the requirements that: (1) the plaintiff make a
specific, detailed factual showing of its need for the attachment, see Mitchell,
416 U.S. at 615-16, 94 S.Ct. at 1904-05; North Georgia Finishing, 419 U.S. at
607, 95 S.Ct. at 722; (2) a judge, who has discretion to deny the issuance of the
appropriate writ, approve the seizure, Johnson v. American Credit Co., 581
F.2d 526, 533-34 (5th Cir.1978); and (3) the defendant be afforded an
immediate post-seizure hearing at which time the plaintiff must prove
entitlement to the writ of attachment. Mitchell, 416 U.S. at 618, 94 S.Ct. at
1905; North Georgia Finishing, 419 U.S. at 607, 95 S.Ct. at 722.

61

Rule B(1) provides that in maritime in personam actions the plaintiff may
obtain a prejudgment attachment of a defendant's goods or chattels, usually a
vessel and its contents, if the defendant is not found within the district. The rule
requires that the plaintiff submit a verified complaint asking for the writ of
attachment. The complaint must be accompanied by an affidavit that states, on
information and belief, that the defendant cannot be found within the district.
The affidavit must be signed by either the plaintiff or his attorney. Upon the
receipt of the verified complaint and accompanying affidavit, the clerk of the
court is required to issue the writ of attachment.

62

Rule B(1) authorizes the attachment of property without a prior hearing, and
without any of the protections that are constitutionally required to protect the
interests of the defendant. The creditor is not required to make a specific,
detailed showing of the efforts made to ascertain whether or not the defendant
can be found within the district. Rather, the creditor need only allege the
conclusion that, on information and belief, the defendant cannot be found
within the district. The judge has no discretion to deny the writ of attachment if
he is not satisfied that the writ should be granted. Indeed, a judge has no part in
the process at all; it is a court clerk who must grant the writ of attachment when
the appropriate complaint and affidavit is presented. Finally, although in the
present case Bottacchi was afforded a hearing one day after its property was
attached, a prompt postattachment hearing is not required by Rule B(1). In
short, Rule B(1) has virtually the same deficiencies as the statute held

unconstitutional in North Georgia Finishing. See 419 U.S. at 607, 95 S.Ct. at

722.
63

In arguing that additional procedural protections were not required in the

present case, the majority emphasizes the unique context of admiralty law, in
which a defendant can easily remove his property from the jurisdiction of the
court on short notice. In essence, the majority argues that, because additional
procedural protections will not necessarily prevent wrongful attachments and
may provide the defendant with the short time needed to remove his property,
such protections are not required by due process. Most significantly, the
majority claims that, because of the difficulty in determining whether an
attachment is appropriate, a preattachment ex parte hearing and judicial
issuance of the writ of attachment would prove ineffective in discerning
wrongful attachments and therefore can be foregone. Supra at 1538-1539.

64

The fact that it may be difficult to discern accurately when a writ of attachment
should issue does not justify the failure to require any preattachment effort to
determine the appropriateness of the writ. On the contrary, this difficulty
justifies heightened procedural protections for maritime property owners. See
Mitchell, 416 U.S. at 617-18, 94 S.Ct. at 1905-06. A preattachment ex parte
hearing before a judge, at which time the plaintiff would be required to provide
a specific, detailed basis on which the judge could determine the
appropriateness of the writ, would afford some protection from the erroneous
attachment of maritime property. A judge's review of the plaintiff's submissions
might indicate not only that the defendant might be found within the district or
that the defendant does not own the property sought to be attached, but also that
there is no danger that the defendant will remove his property from the
jurisdiction. In that case, where no emergency exists, there would be no reason
to dispense with the full due process protection of prior notice and a hearing.

65

Although plaintiffs might have a heightened interest in expedited procedures in

the context of maritime commerce, property owners do not have lessened
property interests just because their property is connected with a ship. Maritime
property owners, like other property owners, have a constitutionally protected
interest in not having their property wrongfully attached. Rule B(1) does not
provide adequate protections from the wrongful attachment of maritime
property. Accordingly, I would hold that Rule B(1) violates the Due Process
Clause of the Fifth Amendment.

A time charter is a contract under which the owner lets the use of the ship to

another person for a specified period. The owner continues to operate the vessel
and contracts to render the services of his master and crew to carry goods
loaded on the ship
2

Clause 17 of the charter party provided that any disputes arising between the
owners and charterers should be submitted to arbitration in London

The vessel was actually owned by Angel Louis Maria Bottacchi

Under this arrangement the charterer (here, Bottacchi) leases the vessel, takes
control of the ship, and supplies the crew. We note that the creation of a
corporate shell to charter a vessel insulates the actual owner from liability and
thereby neatly avoids any possibility of the ship being attached by the
corporation's creditors

Actually, the court held that Bottacchi had been accorded due process under
Rule B(1) "as applied." The court went on, however, to hold Rule B(1) facially
unconstitutional as violative of due process. Since logic precludes a court from
holding a statute facially unconstitutional and yet constitutional as applied, we
read the district court as having dissolved the writ on the theory that, without a
valid attachment rule, the court lacked the power to issue the writ. Thus, the
fact that under the circumstances Bottacchi had received full due process was of
no moment

See Crysen Shipping Co. v. Bona Shipping Co., 553 F.Supp. 139
(M.D.Fla.1982); Cooper Shipping v. Century 21, 1983 A.M.C. 244
(M.D.Fla.1982)

The grant extends to the "supreme Court, and ... such inferior Courts as the
Congress may from time to time ordain and establish." Art. III, Sec. 1

Congress implemented this constitutional grant in the Judiciary Act of 1789, ch.
20, Sec. 9, 1 Stat. 76, 76-77. This provision is currently codified at 28 U.S.C.
Sec. 1333 (1982)

This proposition was reiterated by the Supreme Court in Romero v.

International Terminal Operating Co., 358 U.S. 354, 360-61, 79 S.Ct. 468, 474,
3 L.Ed.2d 368 (1959):
Article III, Sec. 2, cl. 1 (3d provision) of the Constitution and section 9 of the
Act of September 24, 1789, have from the beginning been the sources of
jurisdiction in litigation based upon federal maritime law. Article III impliedly
contained three grants. (1) It empowered Congress to confer admiralty and
maritime jurisdiction on the "Tribunals inferior to the Supreme Court" which

were authorized by Art. I, Sec. 8, cl. 9. (2) It empowered the federal courts in
their exercise of the admiralty and maritime jurisdiction which had been
conferred on them, to draw on the substantive law "inherent in the admiralty
and maritime jurisdiction," ... and to continue the development of this law
within constitutional limits. (3) It empowered Congress to revise and
supplement the maritime law within the limits of the Constitution.
(Citations omitted.)
Although Congress has broad power to modify maritime law, that power is
itself circumscribed by the Constitution. Congress may not legislate beyond the
constitutional limits inherent in the maritime jurisdiction:
[T]here are [congressional] limitations which have come to be well recognized.
One is that there are boundaries to the maritime law and admiralty jurisdiction
which inhere in those subjects and cannot be altered by legislation, as by
excluding a thing falling clearly within them or including a thing falling clearly
without. Another is that the spirit and purpose of the constitutional provision
require that the enactments--when not relating to matters whose existence or
influence is confined to a more restricted field ...--shall be coextensive with and
operate uniformly in the whole of the United States.
Panama Railroad v. Johnson, 264 U.S. 375, 386-87, 44 S.Ct. 391, 394, 68 L.Ed.
748 (1924) (citations omitted). See 1 E. Jhirad, A. Sann & B. Chase, Benedict
on Admiralty Sec. 110 (7th ed. 1983); see also O'Donnell v. Great Lakes
Dredge & Dock Co., 318 U.S. 36, 40-43, 63 S.Ct. 488, 491-92, 87 L.Ed. 596
(1943); Pryor v. American President Lines, 520 F.2d 974, 977 (4th Cir.1975),
cert. denied, 423 U.S. 1055, 96 S.Ct. 787, 46 L.Ed.2d 644 (1976).
10

Constitutional authority for Congress to modify maritime law derives from its
authority to regulate commerce under art. I, Sec. 8, cl. 3, and its power to make
laws which shall be necessary and proper to carry into execution powers vested
by the Constitution in the government or any department of it. Art. I, Sec. 8, cl.
18. See 1 E. Jhirad, A. Sann & B. Chase, Benedict on Admiralty Sec. 109 (7th
ed. 1983)

11

See G. Gilmore & C. Black, The Law of Admiralty 47 (2d ed. 1975)

12

Act of Sept. 29, 1789, ch. 21, Sec. 2, 1 Stat. 93

13

Unlike common law, the history of admiralty law is one of codification. For a
brief history of these codes, from the tablets of Amalfi to the Rules of Oleron,
see G. Gilmore & C. Black, The Law of Admiralty 5-6 (2d ed. 1975). As
codified law, admiralty became associated with the work of continental legal

scholars who were modernizing the Roman or "civil" law. "Maritime law thus
grew up and came of age under the tutelage of the civil law, and it still bears
the imprint thus acquired, even when administered in the courts of common law
countries." Id. at 8. Thus the Process Act of 1789, in mandating the application
of civil law, required only that courts look to the traditional sources of maritime
law
14

Act of May 8, 1792, ch. 36, Sec. 2, 1 Stat. 276

15

Act of Aug. 23, 1842, ch. 188, Sec. 6, 5 Stat. 518 (codified as amended in 28
U.S.C. Sec. 2072 (1982))

16

Rule 2 provided that:

In suits in personam, the mesne process may be by a simple warrant of arrest of
the person of the defendant, in the nature of a capias, or by a warrant of arrest
of the person of the defendant, with a clause therein, that if he cannot be found,
to attach his goods and chattels to the amount sued for; or if such property can
not be found, to attach his credits and effects to the amount sued for in the
hands of the garnishees named therein; or by a simple monition, in the nature of
a summons to appear and answer to the suit, as the libellant shall, in his libel or
information, pray for or elect.
Reprinted in 7A J. Moore & A. Pelaez, Moore's Federal Practice p .30, at 224
(2d ed. 1983).

17

See Supplemental Rule B advisory committee note

18

The Court did note that there were certain unusual or "extraordinary" situations
where preseizure notice and an opportunity to be heard might not be necessary.
These cases share three common elements:
First, in each case, the seizure has been directly necessary to secure an
important governmental or general public interest. Second, there has been a
special need for very prompt action. Third, the State has kept strict control over
its monopoly of legitimate force: the person initiating the seizure has been a
government official responsible for determining, under the standards of a
narrowly drawn statute, that it was necessary and justified in the particular
instance.
Fuentes v. Shevin, 407 U.S. 67, 91, 92 S.Ct. 1983, 2000, 32 L.Ed.2d 556
(1972). Attachment under Rule B(1), however, clearly meets none of these
requirements. See Grand Bahama Petroleum Co. v. Canadian Transportation
Agencies, Ltd., 450 F.Supp. 447, 457 (W.D.Wash.1978).

19

At issue in Fuentes was the repossession of a stove, a stereo, a bed, a table, and
other household goods

20

Another important difference between admiralty attachment and the procedure

in question in North Georgia Finishing, Inc. v. Di-Chem, 419 U.S. 601, 95 S.Ct.
719, 42 L.Ed.2d 751 (1975), is that in North Georgia Finishing, jurisdiction
over the defendant was not obtained by the attachment. Obtaining jurisdiction
over the debtor is a primary objective of maritime attachment

21

46 U.S.C. Secs. 181-189 (1982)

22

Bottacchi advances no such claim in this case. We note an inconsistency in the

analysis of courts which find the substantive due process rationale of Shaffer
inapplicable to maritime attachment and yet proceed rigidly to impose the
procedural due process requirements of the Sniadach line of cases. See, e.g.,
Grand Bahama Petroleum Co., 450 F.Supp. at 452. In our view, flexibility in
one component of due process counsels flexibility in the other

23

We attach no significance to the fact that this case involves the due process
clause of the fifth rather than the fourteenth amendment as was the case in
Sniadach and its progeny

24

The facts in this case illustrate this commercial practice. When the U.S.
Marshal notified the local agents for the M/V Puntas Malvinas that she was
about to be attached, the agents contacted the local counsel for the P & I club in
which the vessel was a member. Bottacchi had admiralty counsel to protect its
interests even before the vessel was attached

25

Brief of Amicus at 12. We note that in the present case security was posted for
the claim and the ship was released on May 26, 1982, one day after the writ of
attachment issued

26

As we stated earlier, although Bottacchi did not receive judicial notice of the
impending attachment, it was made aware of the situation by a U.S. Marshal

27

Leonhardt's mistaken belief that Bottacchi was the owner of the vessel derived
from misinformation supplied by Lloyd's Register. The true owner of the ship
would not have been identified in an ex parte hearing before a judge

28

Although there are substantive differences between Rule B(1) attachments and
Supplemental Rule C seizures or arrests, procedurally they are very similar. For
this reason, we find the treatment of Rule C seizures constitutionality relevant
to our present inquiry. See Polar Shipping, 680 F.2d at 637. But see Merchants
National Bank, 663 F.2d at 1343

29

We are aware that Supplemental Rules B and E are in the process of being
amended to provide for ex parte judicial review and an immediate
postattachment hearing. We interpret this, though, not as an admission that Rule
B, absent such an amendment, is unconstitutional, but rather as an attempt to
end litigation over attachments and to eliminate any speculation as to the
constitutionality of the procedure. See Proposed Amendments to the
Supplemental Rules for Certain Admiralty and Maritime Claims, 98 F.R.D. 374
(1983) (Advisory Committee's Explanatory Statement). See also Culp, Charting
a New Course: Proposed Amendments to the Supplemental Rules for
Admiralty Arrest and Attachment, 15 J. Mar. L. & Com. 353, 387-89 (1984).
We note, however, that this legislation will have no effect on litigation over
attachments issued prior to Rule B's amendment

30

Bottacchi argues that, although the hearing was prompt, it was not adequate
because the district court only considered the constitutionality of Rule B(1).
The record, however, shows that Bottacchi's lawyer raised the constitutional
issue, and there is no indication that he was prevented from bringing other
issues to the court's attention