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The Supplemental Admiralty Rules: A Realm of Unique Experiences and Possible Repercussions

, Semmes, US

In the Fall of 1999, while as an associate at my firm (Semmes, Bowen & Semmes in Baltimore, Maryland), I had the pleasure of handling my first vessel arrest action, all by myself, from start to finish. I had been taught well by my mentor JoAnne Zawitoski, and this was the next step in the learning process. The two main facts that I still recall to this day about this particular vessel arrest was that the vessel being arrested was the M/V PONTEMEDON (a Greek vessel with a predominantly Greek crew), and the basis of the maritime lien was unpaid electrical services from a vendor in Louisiana for just slightly more than $7,000.

The time and money spent preparing and filing the pleadings, paying the US Marshal's $3,000 security deposit, appearing ex parte before the US District Court Judge to discuss the merits of my client's claim, coordinating the signed orders and papers for the US Marshal's Service, and then going with the Deputy US Marshal to serve the Warrant of Arrest and other related pleadings and orders on the vessel and its master easily exceeded the $7,000+ that was owed. It was clearly a matter of principle to my client, and the Rule C arrest gave my client the ultimate enforcement tool to make its point.

Back in 1999, the general practice at that time in the Port of Baltimore was that the attorney would typically join the Deputy US Marshal when serving the paperwork on the vessel and its master. That practice has changed several times over the past 22 years, including the first notable shift in 2001-2002 which was largely influenced by the events of 9/11 and the resulting Maritime Transportation Security Act of 2002. In recent years (pre-COVID), the practice had shifted back to attorneys accompanying the Deputy US Marshal for service, and now, as a result of COVID, it looks like it may shift back, once again, at least for the time being, to attorneys not joining the Deputy US Marshal when accomplishing service of the Warrant of Arrest.

As fate would have it, the US Marshal's Service assigned the service of the PONTEMEDON arrest papers to a younger Deputy US Marshal who confided in me that this was also HIS first vessel arrest. Two younger guys both learning on the job….what could go wrong? Suffice it to say, the service of the paperwork for this vessel arrest became one of legend.

We boarded the PONTEMEDON, which was docked at Clinton Street, and we proceeded up to the Bridge. We introduced ourselves to the Master, who was a gentleman in his mid-to-late 50's with a very thick Greek accent. The Deputy Marshal flashed his badge and attempted to explain that we were there to serve paperwork for the purpose of arresting the vessel for unpaid electrical work while the vessel had been in Louisiana. The Master started to become irate and hostile. Sensing this, I quickly tried to explain that the orders signed by the US District Court Judge permitted the crew to continue working, and that if they completed their loading operations before the matter was resolved that the vessel could simply move to anchorage until the matter was resolved or until acceptable security was posted. However, my explanation clearly was not understood as I had intended it, and the Master transitioned into a full-on rage, yelling (presumably) Greek expletives at the two of us.

It was at this point that I experienced something that I never could have imagined when we arrived on Clinton Street that day, let alone on my very first vessel arrest….the young Deputy US Marshal pulled his sidearm, pointed it in the direction of the Master, and he started yelling at the Master to calm down. In a matter of moments, fortunately, cooler heads prevailed. We were able to serve the paperwork, and we successfully explained to the Master (and the other crew members that had assembled by that time) that the vessel could continue with its loading operations in spite of the vessel arrest. Full of adrenaline, we quickly disembarked from the vessel and thereafter took a brief moment to assess what had just happened, and to half-kiddingly contemplate how close we had come to being featured on the local news later that evening.

Since that initial baptism into handling Rule B, Rule C, and even sometimes Rule D arrest proceedings, I have never experienced something quite as dramatic. In the past 22 years, I have handled numerous such proceedings, predominantly in the Mid-Atlantic region of the United States (i.e., Maryland, Delaware, District of Columbia, and Virginia), and have witnessed and/or participated in events that will certainly stay with me for the rest of my life and are the foundations for harrowing stories of brutal conditions, unique experiences, and decisive legal actions.

I have had the ability and the "fortune" (so to speak) to board a moving cargo vessel from a pilot launch by way of a Jacob's Ladder in the middle of February with ice floating on the water in the Upper Chesapeake Bay, and, on the other end of the spectrum, I have had the gruesome responsibility of responding to emergency maritime events where individuals involved in tragic incidents have regrettably perished in my presence.

The provisions that are encapsulated in the Supplemental Admiralty Rules provide a unique roadmap to understanding and implementing the mechanism for exercising what I have repeatedly described to others as "the most effective set of enforcement tools known to law." In fact, when asked by people unfamiliar with maritime procedure "how does one actually arrest a vessel?," over the years I have typically resorted to using the simple response of "…with very large handcuffs."

These incredible powers, however, are not unlimited. There are, and should be, repercussions when using the Supplemental Admiralty Rules with bad faith, malice, or gross negligence, and the primary means of pursuing such repercussions is through a claim of wrongful arrest (or attachment). While such a claim is more likely to be brought as a counterclaim in the context of a Rule C vessel arrest or a Rule B attachment action, it theoretically could also be asserted in the context of a Rule D cargo arrest proceeding.

Wrongful arrest or attachment claims have traditionally been few and far between through the years, but there has recently been a developing trend that such claims are starting to be used (or at least threatened) more frequently. Under maritime law in the United States, in order to establish wrongful arrest, one has to show that the claimant acted with bad faith, malice, or gross negligence. Frontera Fruit Co. v. Dowling, 91 F.2d 293, 297 (5th Cir. 1937); Ocean Ship Supply Ltd. v. M/V Leah, 729 F.2d 971, 974 (4th Cir. 1984); see also Fidelity Bank PLC v. Northern Fox Shipping N.V., 2010 WL 4117003 (D.Md. October 19, 2010).

The practical standard, however, for an alleged wrongful arrest is fairly onerous, and the party alleging such a claim bears a pretty heavy burden to establish wrongful arrest. Despite that heavy burden, wrongful arrest proceedings can succeed under the appropriate set of circumstances. See, e.g., Coastal Barge Corp. v. M/V Maritime Prosperity, 901 F.Supp. 325, 328 (M.D. Fla. 1994)(Court held that the re-arrest of a vessel by the shipowner after pledging not to re-arrest the vessel amounted to bad faith and malice).

The stories that have emerged from my maritime practice over the years have provided fodder for family members, friends, and fellow colleagues, and they serve as a periodic reminder that sometimes maritime practitioners really do have an exciting job that places them right in the middle of the action.