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MARITIME ATTACHMENT: AN EXPANDED REMEDY FOR OVERSEAS JUDGMENT CREDITORS.

TABLE OF CONTENTS

  I. Introduction                                                334
 II. FFA Litigation in the United States                         336
III. A Broader View of Penhallow Jurisdiction                    338
 IV. United States Admiralty Enforcement Jurisdiction Outside
     the Second and Fourth Circuits                              339
  V. Overseas Creditors May Not Realize That Their Claim is
     "Maritime"                                                  343
 VI. American Maritime Attachment: A Powerful Remedy             347
VII. Conclusion                                                  352


I. INTRODUCTION

The United States District Court for the Southern District of New York recently decided the merits of D'Amico Dry Ltd. v. Primera Maritime (Hellas) Ltd., (1) a maritime case concerning a futures contract, otherwise known as a forward freight agreement (FFA). (2) Now on appeal, D'Amico is the latest in a series of cases concerning FFAs. However, the conclusion of those cases (collectively, FFA litigation) in the United States has resulted in several opinions clarifying the wider issue of the scope of federal courts' admiralty jurisdiction to enforce foreign country judgments. Writers on the topic of international litigation have often referred to the English courts' use of Mareva (3) and Anton Piller (4) orders as the "nuclear option" in cross-border litigation. (5) In the United States, the FFA litigation clarified that federal courts sitting in admiralty are empowered to employ a nuclear option of their own with respect to certain types of claims commenced by foreign judgment creditors: maritime attachment.

Over the span of three years, the United States Courts of Appeals for the Second and Fourth Circuits came to several significant conclusions regarding the use of maritime attachment by foreign judgment creditors: First, United States federal courts' admiralty jurisdiction extends to enforcement of foreign judgments on "maritime" claims, even if those judgments were not issued by specialized admiralty courts. (6) Second, this is true even if the foreign judgment is simply for a sum of money (as opposed to judgments that might specify a more maritime-flavored remedy). (7) Third, in admiralty cases concerning recognition and enforcement of foreign judgments, United States courts must apply federal admiralty law, not the law of the issuing jurisdiction, to determine if the claim underlying the judgment is "maritime" in nature. (8) Fourth, these rules extend to enforcement of foreign arbitration awards where a federal court determines that an underlying claim is "maritime" in nature. (9) Fifth, creditors on foreign judgments or arbitration awards based on "maritime" claims are permitted to use maritime attachment in United States federal courts to collect on those judgments or awards. (10)

This paper examines the conclusions reached in the United States FFA litigation in the wider context of the maritime remedies available worldwide. Ocean shipping is an international endeavor, potentially subjecting an individual vessel--and its owners and operators--to the jurisdiction of numerous courts throughout the world as a vessel makes calls in ports worldwide. American maritime practitioners will likely view the outcome of the FFA litigation in terms of the federal court jurisdiction afforded to maritime judgment creditors within the United States. To overseas judgment creditors, the courts' holdings in the FFA litigation also signal that American courts may offer them powerful remedies against recalcitrant judgment debtors--remedies not often available elsewhere.

II. FFA LITIGATION IN THE UNITED STATES

The recent FFA litigation in the Second and Fourth Circuits centered on two admiralty actions to enforce judgments from the English Commercial Court concerning breaches of FFAs. In D'Amico Dry Ltd. v. Primera Maritime (Hellas) Ltd., the Southern District of New York dismissed the action for lack of subject matter jurisdiction, finding that enforcement of the English judgment did not trigger federal admiralty jurisdiction. (11) The district court judge agreed with Primera Maritime (Hellas) Ltd. that the judgment had not been rendered by a "maritime" court, and that the judgment did not concern a "maritime" claim, because English law did not consider FFAs to be contracts capable of triggering admiralty jurisdiction within the English court system. (12) The Second Circuit reversed, (13) citing as support an earlier Fourth Circuit opinion that a judgment can be "maritime" without having been rendered by a specialist maritime court. (14) The Second Circuit previously speculated on this possibility in dictum in Victrix Steamship Co. v. Salen Dry Cargo, when it said simply that "an admiralty court has jurisdiction of a claim to enforce a foreign judgment that is itself based on a maritime claim," without qualification. (15) In D'Amico, the Second Circuit also concluded that federal law, rather than English law, should be used to determine whether the action in the English Commercial Court had been "maritime" in nature. (16)

Concluding that federal law, rather than foreign law, should be applied to determine the "maritime" nature of a foreign claim, the court in DAmico considered the Fourth Circuit's earlier decision in Vitol, S.A. v. Primerose Shipping, (17) in which a creditor sought maritime attachment to enforce a judgment of the English Commercial Court. (18) The court in Vitol determined that admiralty jurisdiction extended to a judgment rendered by the English Commercial Court, as well as the Admiralty Court, (19) because the former court regularly heard maritime-type claims and the choice of forum provided by English law to litigants in maritime matters should not affect a United States federal court's determination of whether the English judgment was properly "maritime." (20) The court in Vitol relied upon the Second Circuit's dictum in Victrix to fortify its conclusion. (21) Vitol was not an FFA case, but concerned a claim for breach of the implied warranty of seaworthiness and, as such, there was no dispute that the claim was "maritime" under the laws of England and the United States. (22)

In the second major case concerning the enforcement of an English judgment regarding breach of an FFA, two months after D'Amico the Fourth Circuit came to the same basic conclusion as the Second Circuit. In Flame S.A. v. Freight Bulk, (23) a creditor sought a maritime attachment to enforce an English Commercial Court judgment concerning breach of an FFA. (24) The Fourth Circuit rejected the argument that the judgment was not "maritime" simply because the claimant had obtained a judgment from the Commercial Court rather than the Admiralty Court. (25) The Fourth Circuit also determined that federal law, not English law, determines whether the underlying claim is "maritime" for purposes of admiralty jurisdiction. (26) The court in Flame determined that an FFA was "maritime" under United States federal law. (27) After remand, the case proceeded to a bench trial, resulting in a second appeal. (28) The trial court had included the claims of the judgment creditor whose maritime attachment had been affirmed in the first appeal and also the consolidated claim of a second creditor holding an English arbitration award. (29) The Fourth Circuit affirmed the existence of federal admiralty jurisdiction for both claims. (30) The court also affirmed the use of the federal doctrine of alter ego and fraudulent conveyance under state law for the attachment of a vessel owned by a party other than the original debtor. (31)

III. A BROADER VIEW OF PENHALLOW JURISDICTION

If the maritime jurisdiction of United States courts to enforce foreign judgments had not been broad before the FFA litigation, the recent appellate decisions concerning FFAs certainly enlarged it. Under the Penhallow rule, (32) American federal courts sitting in admiralty have always claimed the ability to enforce foreign maritime judgments. (33) However, until the Second Circuit's dictum in Victrix, (34) this rule was limited to cases seeking to enforce judgments rendered by other countries' specialized maritime courts. Certainly, the debtors opposing the decisions in the FFA litigation believed on some level that the overseas civil judgments in those cases were not "maritime." (35)

For foreign judgment creditors, the newly-confirmed availability of maritime attachment for a potentially wider variety of claims is probably the most significant outcome from these cases. In American admiralty practice, maritime attachment allows for seizure of vessels and other assets, including bank accounts, located in the United States at the time of the seizure, as well as concomitant jurisdiction over a defendant not located within the United States. (36) Although this remedy is rooted in English admiralty practice, and is analogous to the saisie conervatoire remedy provided in many civil law countries, the practice of maritime attachment has survived in the common law world only in the United States. (37) Although United States courts are somewhat restricted from issuing pre-judgment freezing injunctions of the sort available in English and other Commonwealth courts, (38) the ability to seize property prior to judgment should make maritime attachment a worthy rival of the Mareva injunction for forum-shopping creditors.

IV. UNITED STATES ADMIRALTY ENFORCEMENT JURISDICTION OUTSIDE THE SECOND AND FOURTH CIRCUITS

The Fifth and Ninth Circuits laid part of the groundwork for the Second and Fourth Circuits' decisions in D'Amico and Flame. The Ninth Circuit was the first to recognize that a district court sitting in admiralty has jurisdiction to seize a debtor's assets, even pending completion of overseas litigation subject to a valid forum selection clause. (39) However, as one court in the Fifth Circuit later held, the exception to this doctrine, known as "The Bremen rule," depends upon the breadth of the forum selection clause itself. (40) Nevertheless, the Ninth

Circuit's decision in Polar Shipping recognized that the Rule B attachment procedure may be separated from the merits of the underlying dispute, permitting local district courts to rely on the remedy in its provisional form to extend admiralty jurisdiction even where the merits of the dispute must be litigated elsewhere.

The Fifth Circuit's holding in International Sea Food, Ltd. v. M/V Campeche was perhaps the single most important recent admiralty ruling that permitted the Second and Fourth Circuits to allow blanket enforcement of foreign "maritime" judgments using quasi in rem maritime attachment. (41) The Fifth Circuit concluded that "an admiralty court has jurisdiction to enforce any judgment of another admiralty court regardless of its lack of maritime flavor," (42) and ultimately found that maritime attachment was a proper remedy for enforcing a foreign admiralty money judgment. (43) The court's holding was based in part on dictum in The Centurion, an 1839 case holding that, although an arbitration award did not afford the district court admiralty jurisdiction, a money judgment entered by a maritime judge would have provided jurisdiction because "a court of admiralty has jurisdiction to carry into execution the decree of another court of admiralty." (44) The authorities on which the court in The Centurion based this observation were similarly broad, and did not distinguish between in rem and in personam maritime judgments when referring to this rule. (45) However, the traditional English admiralty rule is that a court has jurisdiction to enforce an in rem judgment, but not an in personam judgment, even if maritime in nature. (46) The United States federal courts have generally followed traditional English admiralty practice. (47) However, on its face the Int'l Sea Food decision appears to be at odds with traditional principles of maritime enforcement jurisdiction, although this fact attracted essentially no notice from commentators at the time. (48)

There is good reason to believe that the holding in Int'l Sea Food that maritime attachment may be issued to enforce a foreign admiralty money judgment will remain the law. Certainly, the Second and Fourth Circuits assumed it was good law. Yet, there could also be reason to question its doctrinal correctness. The Supreme Court's decision in Penhallow v. Doane's Administrators, which originated the rule that federal courts sitting in admiralty may enforce foreign admiralty decrees, also held that admiralty cases are in rem and their in rem judgments bind the whole world to their determinations. (49) This has been the understanding of maritime practitioners in both the United States and England. (50) Thus, it is reasonable to conclude that the rule recognizing foreign admiralty decrees is rooted in the understanding that in rem determinations are universally binding.

The distinction between in rem and in personam proceedings and decrees persists in American maritime law, in that only limitation actions and in rem proceedings are truly "exclusive" to the federal courts. (51) Nevertheless, the Second and Fourth Circuits' decisions in D'Amico and Flame provide additional support for the notion that American courts should not follow the English practices, insofar as American admiralty jurisdiction is meant to be broader than traditional English jurisdiction and to embrace the wider context of "maritime commerce." (52) Indeed, the Supplemental Rules for Admiralty or Maritime Claims specifically refer to the quasi in rem procedure of maritime attachment as one suited for in personam claims. (53) As noted, this American characterization of the remedy is now conclusive because maritime attachment is no longer available in the English courts. (54) Accordingly, the Int'l Sea Food sanction of enforcing in personam admiralty judgments through traditional maritime attachment of vessels and assets appears to be correct and paved the way for the recent D'Amico and Flame decisions.

To date, the Fifth and Ninth Circuits have not squarely addressed the quandary that the Second and Fourth Circuits resolved in D'Amico and Flame: Whether federal or foreign law determines the "maritime" nature of a foreign judgment. (55) Prior to completion of the appellate proceedings in the Second and Fourth Circuits, the Central District of California applied English law--agreeing with the original district court opinion in DAmico--to determine that FFAs were not "maritime" and did not support the use of maritime attachment. (56) However, district courts in the Fifth Circuit came to the opposite conclusion, applying federal law to allow attachment to enforce or secure overseas FFA proceedings and judgments. (57) Indeed, at least one court in the Fifth Circuit had already come to the same conclusion as the Second Circuit, using federal law to determine the "maritime" nature of a claim and allowing pre-judgment maritime attachment. (58)

As a tangent to the issue of the existence of federal admiralty jurisdiction, the Southern District of Texas and the Second Circuit concluded that federal law determines the appropriateness of maritime attachment because the threshold inquiry was procedural and required that the law of the forum to be applied. (59) Courts in both the Fifth and Ninth Circuits have since relied upon the conflict of laws principles laid out in the Second Circuit's opinion in Blue Whale Corp. v. Grand China Shipping Development Co., Ltd., (60) although these principles have not yet been specifically applied to maritime attachment cases. (61) Thus, while the Fifth and Ninth Circuits have provided robust support for the use of maritime attachment, including enforcement of foreign admiralty judgments, neither has yet approved the approaches of D'Amico and Flame.

V. OVERSEAS CREDITORS MAY NOT REALIZE THAT THEIR CLAIM IS "MARITIME"

Creditors holding overseas judgments, therefore, have good reason to inquire into whether claims that a foreign court reduced to judgment are "maritime" in United States federal courts, even though they may not be considered "maritime" by the issuing courts. The recent FFA litigation in the Second and Fourth Circuits typifies the disconnect between the American and foreign definitions of a "maritime" claim. The courts reviewing these contracts have generally agreed that they are financial, and not maritime, in nature. Under an FFA, a shipper and carrier agree to peg carriage rates at a certain level, such that if rates in a specified future period are higher or lower, the advantaged party will compensate the disadvantaged party for the difference. (62)

Only one reported English decision has confronted FFAs head-on, in which the court simply enforced the FFA as a matter of contract law without passing on any potential maritime implications. (63) Under a statute derived from the United Kingdom's admiralty statutes, (64) the Federal Court of Australia has specifically ruled that FFAs are not "maritime" and thus do not trigger admiralty jurisdiction or remedies. (65) Courts in Hong Kong and Singapore, where United Kingdom-derived admiralty statutes continue in force, (66) have not so far opined as to whether admiralty jurisdiction applies to FFAs, but have observed that these agreements require only the exchange of money, not the carriage of cargo. (67)

In the United States FFA litigation, the courts acknowledged the financial nature of FFAs and considered testimony and citations to United Kingdom court opinions requiring that a contract specify or relate to an identifiable ship before admiralty jurisdiction can enforce the contract. (68) Nonetheless, several United States courts have ruled that FFAs are "maritime" in nature, (69) although this is not because those judges have misunderstood the nature and operation of FFAs. The judges considering the nature of these agreements under United States federal law were aware that the parties to an FFA could fully perform their mutual obligations without ever shipping or carrying any cargo. (70) Instead, the extent of admiralty jurisdiction implicates the balance between the powers of the federal and state governments and their respective courts. (71) Because of the interplay between the federal and state courts, the traditional jurisdictional limits of English admiralty law do not apply in the United States where "admiralty and maritime jurisdiction... is to be interpreted by a more enlarged view of its essential nature and objects." (72) The primary concern of American federal judges when determining the bounds of admiralty jurisdiction is the uniformity of rules applicable to industries engaging in "maritime commerce" into and out of the United States. (73) Uniformity across fifty states essentially requires that those engaged in "maritime commerce" should have resort to the federal courts, which are made available through the extension of admiralty jurisdiction. (74)

In contrast to the heady constitutional implications of admiralty jurisdiction in United States courts, many overseas legal systems have a more functional attitude toward the division between maritime and other civil or commercial actions and procedures. In the English system, "wet shipping" cases, such as collisions and arrests, are heard by the specialized judges of the Admiralty Court, (75) and "dry shipping" cases, such as cargo disputes, are heard separately by the specialist judges of the Commercial and Mercantile Courts. (76) In other words, England places the unique issues implicated by maritime matters in the hands of judges with relevant maritime or commercial law experience. This trend continues in other Commonwealth jurisdictions, (77) as well as Hong Kong. (78) Allocation of maritime jurisdiction in these countries is not based on the balance of power between centralized and local interests. For example, maritime cases in northern Great Britain may be heard in local Scottish courts, (79) demonstrating that there is no United Kingdom-wide public policy mandating transfer of those cases to the English court system in London.

The contrast between the functional concerns of courts in the British Commonwealth and the constitutional concerns of United States courts is precisely why the Second and Fourth Circuits are right to measure the "maritime" nature of a claim under federal law, rather than foreign law. As one judge concurring in Flame noted, it makes little sense to have the subject matter jurisdiction of United States courts decided by foreign decisional law; (80) nor should a foreign plaintiff's decision to pursue a "maritime" claim in a "civil" court change the nature of the claim itself.

As the Second Circuit observed, limiting United States admiralty courts' recognition of maritime claims to only judgments rendered by specialized maritime courts in other countries would fail to take account of the fact that many nations lack separate maritime courts. (81) Japan, Taiwan, and Korea spell out maritime concepts in their respective commercial codes. (82) Those countries do not prescribe separate rules for maritime claims in general. Instead, general civil procedure rules in Japan, Taiwan, and Korea include special provisions for arrest and sale of vessels, in addition to other types of property. (83) This is in accord with the procedural law of France and Germany, two influential civil law jurisdictions. (84) Under these circumstances, judgments concerning claims recognized as "maritime" in the issuing jurisdiction will not necessarily come from "maritime" courts.

Similarly, "dry shipping" matters are usually heard on a commercial list, rather than an admiralty list, even in Commonwealth countries having specialized "maritime" courts. Consequently, considering that "maritime" judgments issue from ordinary civil courts in common law as well as civil law countries, the Second and Fourth Circuits' refinement--or expansion--of the Penhallow rule is better suited to the reality of maritime practice throughout the world. The appellate decisions in D'Amico and Flame also open up the possibility that creditors holding judgments on "maritime" claims heard in ordinary civil courts abroad may in the United States invoke admiralty jurisdiction and its unique remedies. The United States FFA litigation also establishes that even if a claim was not "maritime" in the foreign jurisdiction where it was first litigated, it may be considered "maritime" in United States courts.

VI. AMERICAN MARITIME ATTACHMENT: A POWERFUL REMEDY

If a foreign creditor obtains a judgment on a claim recognized as "maritime" under United States admiralty law, maritime attachment may be one of the most powerful remedies available from any court in the United States. The law of most, if not all, American states provides for pre-judgment attachment in civil proceedings in state and federal courts. (85) Yet, the effect of state law attachment is more limited than its federal maritime equivalent. State courts interpret their pre-judgment attachment statutes to provide for quasi in rem jurisdiction, meaning that by targeting property of a non-domiciliary debtor within the state, courts in that state can also exercise jurisdiction over that debtor. (86) Yet, the Supreme Court of the United States has limited the effect of this quasi in rem jurisdiction to cases where the res being seized by attachment is actually part of the dispute between the parties. (87) In other cases, if the property being seized is not relevant to the dispute, local courts will not be able to use the situs of the property to extend jurisdiction to the non-domiciliary defendant. (88) The limits on quasi in rem jurisdiction by "attachment jurisdiction" are somewhat softened by the view that once a creditor has obtained a judgment against the debtor in another jurisdiction, the due process concerns that are inherent in extending jurisdiction over a non-resident by virtue of the property being within the state are lessened. (89)

Maritime attachment, on the other hand, has been allowed to continue unfettered and unaffected by the federal courts' due process jurisprudence that restricts state law pre-judgment attachments. Federal appellate courts have consistently held that maritime attachment is outside the scope of restrictions otherwise imposed on state law attachment. (90) The federal courts reason that due process is an elastic concept with requirements that vary with circumstances and that, over the centuries, maritime industries have adapted to the imminent possibility of ship arrests or attachments. (91) Such adaptations include the development of, among other things, protection and indemnity clubs. (92) Accordingly, the use of maritime attachment to obtain quasi in rem jurisdiction over non-resident defendants remains largely unrestricted.

Even to the extent that a state law-based civil attachment remedy would be available to a creditor holding a "maritime" judgment against property within the United States, the procedural advantages of maritime attachment make it imminently preferable. First, in maritime attachment proceedings, state law defenses and set-offs are not permitted because maritime attachment preempts and excludes state laws. (93) This not only makes maritime attachment a more effective remedy for creditors, but also provides for a uniform remedy throughout the United States because it is available from any federal district court sitting in admiralty. Second, maritime attachment allows for summary issuance of an attachment order against a vessel or other property, (94) unlike state law attachment procedures that effectively require a showing of the merits and need for preservation of assets by motion and affidavit, even when requested on an expedited or ex parte basis. (90) Thus, maritime attachment is quicker and easier to obtain than state law attachment. In addition, the claimant is not required to post security to obtain maritime attachment, (96) whereas in state courts, security is almost always required. (97) For judgment creditors, these differences make maritime attachment more cost-effective than state law attachment or other provisional remedies such as preliminary injunctions, which also require that security be provided. (98)

The availability of maritime attachment in United States courts for holders of foreign "maritime" judgments may also make United States courts more attractive to creditors. For example, other common law countries do not typically allow seizure of vessels unless supported by a recognized maritime lien or other special maritime claim enumerated in the relevant admiralty jurisdiction statute. (99) This generally comports with the restrictions imposed by the International Convention for the unification of certain rules relating to the Arrest of Sea-Going Ships (1952 Arrest Convention). (100) Nor is enforcing a maritime in personam judgment or arbitration award an in rem maritime claim affording the arrest of a vessel in Commonwealth jurisdictions. (101) Instead, common law courts outside the United States will usually offer less immediate remedies in the form of freezing injunctions.

The Mareva injunction, the favored weapon of claimants before the courts of other common law countries, is essentially limited to cases where the court is convinced that the defendant will not ignore its order. (102) This is because the Mareva injunction does not seize assets, but merely puts the debtor on pain of contempt if the debtor disposes of or otherwise dissipates assets. (103) The strength of the Mareva injunction is that a court that is convinced its order will be heeded may order the freezing of all of a debtor's assets on a worldwide basis--a truly nuclear option. (104) Unlike a Mareva injunction, (105) the American maritime remedy of attachment, removes certain assets from the debtor's hands entirely--unless security is given for its release (106)--and does not require that the creditor post security for its initial issuance. (107)

Many civil law countries provide a maritime claimant with a saisie conservatoire remedy, which is similar to maritime attachment in that it takes the vessel or other asset out of the debtor's hands and puts it under court supervision. (108) However, those jurisdictions often have other limitations. For example, civil law countries often do not permit the seizure of a vessel that is fully prepared to set sail, (109) unless the underlying claim relates to preparation for that voyage. (110) The admiralty jurisdiction of United States courts has no such limitation. (111) Many countries that provide for a saisie conservatoire remedy are nevertheless restricted to using that remedy only for the "maritime claims" because of their adherence to the 1952 Arrest Convention, (112) a more limited application than the American practice of maritime attachment. (113)

Even in civil law countries which are not parties to the 1952 Arrest Convention, there may be limits to the jurisdictional effect of an arrest. In Japan, a statute provides for de facto quasi in rem jurisdiction over a defendant whose property is found within the country. (114) Japanese courts have held that attachment jurisdiction is proper over a non-resident, based upon the presence of property belonging to that person, where proceedings are pending in another jurisdiction that will result in a judgment that is likely to be recognized in Japan. (115) Nevertheless, at least one Japanese court has refused to exercise jurisdiction over a non-resident defendant where the actual dispute was not relevant to Japan. (116) Thus, simply attaching a vessel or other property belonging to an overseas debtor located in Japan, may not provide the same automatic jurisdiction to adjudicate that exists with United States maritime attachment. The same limitations may well be present in countries with similar jurisdictional statutes to Japan's. Accordingly, the assurance of jurisdiction accompanying United States courts' maritime attachment remedy provides judgment creditors holding "maritime" judgments with a uniquely-sweeping and predictable enforcement mechanism.

VII. CONCLUSION

Maritime law practitioners will rightly view the D'Amico and Flame cases as clarifications of the divide between admiralty and civil jurisdiction in the United States. However, for overseas creditors, those decisions signal the availability of a powerful remedy against judgment debtors in United States federal courts, regardless of whether the debtor is a resident of the United States. So long as the underlying claim is "maritime," a creditor may seize any property held in the United States by the judgment debtor. Such "maritime" claims include maritime claims litigated in ordinary civil courts overseas, and also claims not deemed "maritime" in the jurisdiction of the original litigation, as long as the claims are considered "maritime" under United States law. This enforcement remedy goes beyond the powers of most American state courts to seize property, and exceeds even the maritime remedies available to judgment creditors in many overseas jurisdictions. In the global context, the decisions in the United States FFA litigation demonstrate that the United States courts are potentially as creditor-friendly as English and other Commonwealth courts in affording powerful pre-decisional remedies against judgment debtors in a wider range of cases than previously understood.

Asa William Markel (*)

(*) Principal in the Los Angeles office of Masuda, Funai, Eifert & Mitchell, Ltd. Member of the State Bars of California and New York, and the Law Society of England & Wales.

(1.) See D'Amico Dry Ltd. v. Primera Mar. (Hellas) Ltd., 2016 WL 4361823 (S.D.N.Y. Aug. 13, 2016), appeal docketed, No. 16-3125 (2d Cir. Sept. 9, 2016).

(2.) American admiralty practitioners will no doubt be familiar with the phrase "another 'maritime case concerning a train wreck.'" See Norfolk S. Ry. Co. v. James N. Kirby Pty. Ltd., 543 U.S. 14, 18 (2004).

(3.) Mareva Compania Naviera S.A. v. Int'l Bulkcarriers S.A., [1975] 2 Lloyd's Rep. 509 (Eng.) (referred to as the "freezing injunction"; see ENG. CPR. 25.1(1)(f)).

(4.) Anton-Piller KG v. Manufacturing Processes Ltd., [1976] 1 Ch. 55 (Eng.) (referred to as "search orders"; see ENG. CPR. 25.1(1)(h)).

(5.) See Jeffrey L. Wilson, Three If By Equity: Mareva Orders and the New British Invasion, 19 ST. JOHN'S J. LEGAL COMMENT. 673, 673 (2005).

(6.) See D'Amico Dry Ltd. v. Primera Mar. (Hellas) Ltd., 756 F.3d 151, 157 (2d Cir. 2014); Vitol, S.A. v. Primerose Shipping Co., 708 F.3d 527, 535 (4th Cir. 2013).

(7.) See Vitol, 708 F.3d at 536 (citing Int'l Sea Food Ltd. v. M/V Campeche, 566 F.2d 482, 485 (5th Cir. 1978)).

(8.) See D'Amico, 756 F.3d at 162 n.7; Flame S.A. v. Freight Bulk Pte. Ltd., 762 F.3d 352, 361 (4th Cir. 2014) (Flame I).

(9.) See Flame S.A. v. Freight Bulk Pte. Ltd., 807 F.3d 572, 581 (4th Cir. 2015) (Flame II).

(10.) See Vitol, 708 F.3d at 537-38 (finding that a maritime attachment is available in pre-judgment and post-judgment scenarios).

(11.) See D'Amico, 756 F.3d at 152-53.

(12.) See id. at 155.

(13.) See id. at 152.

(14.) See id. at 156-57 (citing Vitol, 708 P.3d at 535).

(15.) Victrix S.S. Co., S.A. v. Salen Dry Cargo A.B., 825 F.2d 709, 713 (2d Cir. 1987).

(16.) See D'Amico, 756 F.3d at 162; but see Michael Gaines, Adrift at Sea in Search of the Proper Scope of the Penhallow Rule: DAmico Dry Ltd. v. Primera Maritime (Hellas) Ltd., 39 TUL. MAR. L.J. 749, 755 (2015) (arguing that the Second Circuit should have considered the issue as a simple jurisdictional inquiry subject to domestic law).

(17.) See Vitol, 708 F.3d at 527.

(18.) See id. at 531.

(19.) The Commercial Court and Admiralty Court are subdivisions of the Queen's Bench Division of the High Court of England and Wales. Senior Courts Act, 1981, c. 54 [section] 6 (U.K.).

(20.) See Vitol, 708 F.3d at 535.

(21.) See id. at 535 (citing Victrix, 825 F.2d at 713).

(22.) See D'Amico, 756 F.3d at 159. The court in Vitol reached a number of additional significant conclusions which are subsidiary to the topics of this paper. It applied federal law to determine that there was no basis for an alter ego claim to attach ships owned by a company supposedly related to the original judgment debtor. 708 F.3d at 548. However, the court also determined that failure to meet the heightened pleading standards in Supplemental Rule E for a maritime attachment did not necessarily mean that the underlying claim should also be dismissed under Rule 12(b)(6). Vitol, 708 F.3d at 541.

(23.) Flame I, 762 F.3d 352.

(24.) See id. at 357.

(25.) See id. at 358.

(26.) See id. at 361.

(27.) See id. at 363. Two lower courts within the Fifth Circuit had earlier come to the same conclusion in cases concerning FFAs. See Transfield E.R. Futures Ltd. v. Deiulemar Shipping S.P.A., 2012 U.S. Dist. LEXIS 5040, at *8 (E.D. La. Jan. 17, 2012) (concerning an action for pre-judgment maritime attachment to secure future judgment of English High Court); Flame S.A. v. M/V Lynx, 2010 U.S. Dist. LEXIS 145880, at *9 (E.D. Tex. Jun. 22, 2010) (concerning an action to enforce an English Commercial Court judgment).

(28.) See Flame II, 807 F.3d at 577.

(29.) See id. at 578.

(30.) See id. at 581.

(31.) See id. at 589.

(32.) See D'Amico, 756 F.3d at 156.

(33.) See Penhallow v. Doane's Administrators, 3 U.S. (3 Dall.) 54, 97 (1795).

(34.) See Victrix, 825 F.2d at 713.

(35.) In D'Amico, the trial court ultimately vindicated defendants when it found that the FFA was not maritime because it had been used purely for speculation, not as a hedge against underemployment of any party's vessel. See 2016 U.S. Dist. LEXIS 107702, at *32-33.

(36.) See generally Gina M. Venezia, The B, C, D's of the Admiralty Rules: Obtaining Security for Your Claims, 27 U.S.F. MAR. L.J. 241 (2014).

(37.) See William Tetley, Arrest, Attachment, and Related Maritime Law Procedures, 73 TUL. L. REV. 1895, 1928 (1999).

(38.) See Grupo Mexicano de Desarrollo, S.A. v. Alliance Bond Fund, Inc., 527 U.S. 308 (1999). Some circuits have read the Supreme Court's decision to forbid freezing injunctions only where the underlying claim is for monetary damages, as opposed to recovery of an identifiable asset. See Johnson v. Couturier, 572 F.3d 1067, 1083 (9th Cir. 2009). Some state courts, on the other hand, may be more willing to grant freezing injunctions in a variety of cases, but limit the freeze to identifiable assets. See Doyka v. Superior Court, 233 Cal. App. 3d 1134, 1136 (Cal. Ct. App. Aug. 29, 1991).

(39.) This is in spite of the United States doctrine that forum selection clauses usually will be honored as written. See The Bremen v. Zapata Off-Shore Co., 407 U.S. 1, 10(1972).

(40.) See Heidmar Trading, Llc v. Emirates Trading Agency, 2011 U.S. Dist. LEXIS 133397, at *21 (finding that federal court provisional remedies were precluded by an expansive forum selection clause). The Ninth Circuit has also held that once attached assets are released without security, appealling the vacatur of a Rule B attachment is moot. Teyseer Cement Co. v. Halla Mar. Corp., 794 F.2d 472 (9th Cir. 1986).

(41.) 566 F.2d 482 (5th Cir. 1978).

(42.) Id. at 485.

(43.) See id. at 483-84.

(44.) The Centurion, 5 F. Cas. 369, 369 (D. Me. Feb. 21, 1839).

(45.) See Penhallow, 3 U.S. at 97 (Iredell, J., dissenting) (holding that "a Court of Admiralty in one nation, can carry into effect the determination of the Court of Admiralty of another"); Jennings v. Carson, 8 U.S. 2 (1807) (citing the same principle, but without expressly holding the same).

(46.) See The City of Mecca, [1881] 6 P.D. 106, 114 (Eng.).

(47.) See Queen Ins. Co. v. Globe & Rutgers Fire Ins. Co., 263 U.S. 487, 493 (1924) (holding that "established doctrines of English maritime law are to be accorded respect here"). Presumably, if United States federal courts were to continue to adhere to the rule of The City of Mecca, the provisional remedies for enforcing in personam admiralty judgments would be limited to those afforded under local state law. See FED. R. CIV. P. 64(a) (permitting a federal district court to utilize state provisional remedies); FED. R. Crv. P. SUPP. R. ADM. B(1)(e) (permitting a court sitting in admiralty to use state provisional remedies for in personam actions).

(48.) See, e.g., Harold K. Watson, Transnational Maritime Litigation: Selected Problems, 8 TUL. MAE. L.J. 87, 104 n.102 (1983) (accepting the holding of International Sea Food at face value).

(49.) See Penhallow, 3 U.S. at 86.

(50.) See, e.g., Castrique v. Imrie, [1870] L.R. 4 H.L. 414 (Eng.).

(51.) See Lewis v. Lewis & Clark Marine, Inc., 531 U.S. 438 (2001) (recognizing exclusive federal jurisdiction over concursus proceedings, but limiting power to restrain parallel state court actions); Guidry v. Durkin, 834 F.2d 1465, 1469 (9th Cir. 1987) (asserting exclusive federal jurisdiction over in rem claims). Obviously, other statutes may also provide for exclusive federal jurisdiction, such as claims against the federal government under the Suits in Admiralty Act. See 46 U.S.C. [section] 742 (2012). But see 28 U.S.C. [section] 1333 (2012) (referred to as the "saving to suitors" clause, which allows concurrent state and federal jurisdiction over in personam claims); Ghotra v. Bandila Shipping, 113 F.3d 1050, 1054 (9th Cir. 1997) (holding that state courts have concurrent jurisdiction with federal courts over in personam admiralty claims).

(52.) See Flame I, 762 F.3d at 362.

(53.) See FED. E. CIV. P. SUPP. R. ADM. B(l).

(54.) See Tetley, supra note 37, at 1928.

(55.) Similarly, there are currently no citations to either opinion in the remaining coastal circuits--the First, Third, and Eleventh--except for Zambrano v. Vivir Seguros, C.A., 2016 U.S. Dist. LEXIS 122221, at *10 (S.D. Fla. Sept. 9, 2016) (citing Flame S.A. v. Indus. Carriers, Inc., 24 F. Supp. 3d 493, 511 (E.D. Va.), aff'd sub nom. Flame S.A. v. Freight Bulk Pte. Ltd., 762 F.3d 352 (4th Cir. 2014)).

(56.) See Pioneer Freight Futures Co., Ltd. v. Marine Trade S.A, 2011 U.S. Dist. LEXIS 157971 (CD. Cal. Dec. 20, 2011).

(57.) See Transfield E.R. Futures, 2012 U.S. Dist. LEXIS 5040, at *8 (concerning pre-judgment maritime attachment); Flame S.A. v. Primera Maritime (Hellas) Ltd., 2010 WL 481075, at *3-4 (S.D.N.Y. Feb. 2, 2010) (concerning post-judgment maritime attachment).

(58.) See SLS Shipbuilding Co. v. Ionian Mgmt., S.A., 2011 U.S. Dist. LEXIS 72506, at *10 (S.D. Tex. Jul. 5, 2011) (relying on Victrix to enforce a London Maritime Arbitration Association award).

(59.) See SLS Shipbuilding Co., 2011 U.S. Dist. LEXIS 72506, at *9-10; Blue Whale Corp. v. Grand China Shipping Dev. Co., Ltd., 722 F.3d 488, 494 (2d Cir. 2013).

(60.) 722 F.3d 488.

(61.) See, e.g., Richardson Stevedoring & Logistics Servs. v. Daebo Int'l Shipping Co., 2015 U.S. Dist. LEXIS 51645, at *19 (E.D. La. Apr. 20, 2015); Iron Pasha, Inc. v. Shanghai Grand China Shipping Dev. Co., 2013 U.S. Dist. LEXIS 132294, at *13 (W.D. Wash. Sept. 15, 2013).

(62.) See D'Amico, 756 F.3d at 153-54.

(63.) Dampskibsselskabet "Norden" A/S v. Andre & Cie., S.A., [2003] EWHC 84 (Eng.).

(64.) The Australian Admiralty Act 1988 (Cth), Canadian Federal Court Act 1970, South African Admiralty Jurisdiction Regulation Act 1983, and New Zealand's Admiralty Act 1973 were based on the U.K.'s Administration of Justice Act 1956. DAMIEN J. CREMEAN, ADMIRALTY JURISDICTION: LAW AND PRACTICE IN AUSTRALIA, NEW ZEALAND, SINGAPORE & HONG KONG 8 (3d ed. Federation Press 2008).

(65.) Transfield E.R. Futures Ltd. v. Ship "Giovanna Iuliano", [2012] FCA 548 (Austl.).

(66.) See CREMEAN, supra note 64, at 7 (describing the genesis of the Hong Kong High Court Ordinance and the Singaporean High Court (Admiralty Jurisdiction) Act).

(67.) TMT Asia Ltd. v. BHP Billiton Marketing AG, [2015] SGHC 21 (Sing. H. Ct. Jan. 28); Deiulemar Shipping S.p.A. v. Transfield E.R. Futures Ltd., [2010] HKCA 34 (H.K. H. Ct. Nov. 17).

(68.) D'Amico, 756 F.3d at 154 (citing The Sandrina, [1985] A.C. 255, 271 (H.L.); The "Lloyd Pacifico", [1995] 1 Lloyd's Rep. 54, 57 (Q.B.)).

(69.) See Flame I, 762 F.3d at 363; Transfield E.R. Futures, 2012 U.S. Dist. LEXIS 5040, at *8; Flame S.A. v. M/V Lynx, 2010 U.S. Dist. LEXIS 145880, at *9 (E.D. Tex. June 22, 2010). The trial judge in D'Amico accepted that FFAs could be maritime under U.S. law, but ruled that the FFA in that particular case was not. DAmico, 2016 U.S. Dist. LEXIS 107702, at *32-33.

(70.) Flame I, 762 F.3d at 354 (stating that "shipping services contemplated in an FFA would likely never be performed by the parties").

(71.) See Flame I, 762 F.3d at 359.

(72.) Id. (quoting Ins. Co. v. Dunham, 78 U.S. 1, 24 (1870)).

(73.) See id. at 362.

(74.) See id. at 359.

(75.) ENG. CIV. PROC. R. 61.2(1).

(76.) ENG. CIV. PROC. R. 58.1(2) (explaining that Commercial Courts hear disputes concerning import and export transactions, carriage of goods by sea, and ship construction); ENG. ClV. PROC. R.61.2(3) (permitting transfer of admiralty claims to Commercial and Mercantile Courts).

(77.) See, e.g., Practice Note No. SC Eq 2 (N.S.W. S. Ct. Jun. 25, 2010) (Austl.) (setting procedures for the Admiralty List of the New South Wales Supreme Court); Practice Note No. 5 of 2002 (Vict. S. Ct. Dec. 2002) (Austl.) (setting procedures for the Admiralty List of the Victoria Supreme Court); Dresdner Kleinwort Ltd. v. CIMB Bank Bhd., [2008] SGHC 59 (Sing. H. Ct. Apr. 14, 2008). The rules in these jurisdictions call for listing of cases on specialist "lists" for which they are entitled to trial before specialist judges. See H.K. H. Ct. R. Ord. 34, r. 4; Sing. R. Ct. Ord. 34, r. 4.

(78.) See H.K. Prac. Dir. 1.1 (procedures for the Admiralty List); see also C.H. VAN RHEE AND YULIN FU EDS., CIVIL LITIGATION IN CHINA AND EUROPE: ESSAYS ON THE ROLE OF THE JUDGE AND THE PARTIES 77 (Springer 2014); JIUNN-RONG YEH, ASIAN COURTS IN CONTEXT 188 n.25 (Cambridge Univ. 2015).

(79.) See Court of Session Act 1830 (11 Geo. IV & 1 Wm. IV c. 69) [section][section] 21, 29 (U.K.) (explaining that the Court of Session shall take over jurisdiction of the Scottish High Court of Admiralty, and sheriff courts retain lesser admiralty jurisdiction); Administration of Justice Act 1956 (c. 46) [section][section] 45-47A (U.K.) (prescribing admiralty jurisdiction for Scottish courts); R. Ct. Sess. ch. 46 (Scot.) (concerning the rules for admiralty actions); and Sheriff Ct. R. ch. 49 (Scot.) (concerning the rules for admiralty actions in smaller cases).

(80.) See Flame I, 762 F.3d at 363 (Wilkinson, J., concurring).

(81.) See D'Amico, 756 F.3d at 161.

(82.) See Shouhou [Com. C] (Law No. 48 of 1899), arts. 842-851 (Japan) (describing maritime liens); Sangbeob [Commercial Act], (Law No. 1000 of 1962) arts. 777-786 (R.O.K.) (describing the same); Hai shang fa [Maritime Law] arts. 24-32 (R.O.C.) (describing the same).

(83.) See Minji Hozen Hou [Civil Provisional Remedies Act] (Law No. 91 of 1989), art. 48 (Japan) (ship seizure); Minsa-jipaeng-beop [Civil Execution Act] (Law No. 6627 of 2002), arts. 172-187 (S. Kor.) (ship seizure); Qiangzhi zhixing fa [Compulsory Execution Law] arts. 114--114-4 (R.O.C.) (ship seizure). China is a notable exception to this trend: Article 4 of the Maritime Procedure Law (Ord. 28 of 1999) vests jurisdiction over maritime claims in specialized maritime courts.

(84.) See Zivilprozessordnung [ZPO] [Civ. Proc. Code] [section] 847(a) (seizure of vessel) and [section] 931 (vessel attachment); Code des procedures civiles d'execution [C. Civ. Exec] [Code of Civil Execution Procedure] arts. L111-1-L112-4 (Fr.) (attachment procedures); Code des transports [C. Trans.] [Transportation Code] arts. L5114-20-L5114-29 (Fr.) (vessel arrest).

(85.) See FED. R. CIV. P. 64; United States v. Van Cauwenberghe, 934 F.2d 1048, 1063 n.13 (9th Cir. 1991) (holding that, in civil proceedings, state statutes govern pre-judgment attachment proceedings in federal court).

(86.) See Koehler v. Bank of Bermuda Ltd., 911 N.E.2d 825, 828-29 (N.Y. 2009); Islander Yachts, Inc. v. One Freeport 36' Vessel, 173 Cal. App. 3d 1081, 1085 n.2 (1985).

(87.) See Shaffer v. Heitner, 433 U.S. 186, 212 (1977).

(88.) Id.

(89.) See Office Depot Inc. v. Zuccarini, 596 F.3d 696, 700 (9th Cir. 2010) (citing Shaffer, 433 U.S. at 210 n.36).

(90.) See Schifffahrtsgesellschaft Leonhardt & Co. v. A. Bottacchi S.A. de Navegacion, 773 F.2d 1528, 1537-38 (11th Cir. 1985).

(91.) See id.

(92.) See id.

(93.) See Aurora Maritime Co. v. Abdullah Mohamed Fahem & Co., 85 F.3d 44, 47 (2d Cir. 1996) (giving no effect to New York rights of set-off in a maritime attachment proceeding); see also Lydig Constr., Inc. v. Martinez Steel Corp., 234 Cal. App. 4th 937, 945 (2015) (allowing set-off against attachment under California state law).

(94.) See FED. R. CIV. P. SUPP. R. ADM. B(l)(b).

(95.) CAL. CIV. PROC. CODE [section] 485.210; N.Y. C.P.L.R. 6212 (MCKINNEY 2016).

(96.) See FED. R. CIV. P. SUPP. R. ADM. E(2)(b); Schifffahrtsgesellschaft, 773 F.3d at 1537.

(97.) CAL. CIV. PROC. CODE [section][section] 489.210, 489.220; N.Y. C.P.L.R. 6212 (MCKINNEY 2016).

(98.) CAL. CIV. PROC. CODE [section] 529; N.Y. C.P.L.R. 6312(b) (MCKINNEY 2016).

(99.) See Senior Courts Act 1981, c. 54, [section][section] 21(2) (maritime liens), 21(3) (enumerated maritime claims) (U.K.); Admiralty Act 1988 (Cth.) (No. 43 of 1988), [section][section] 14-19 (Austl.); Admiralty Act 1973 (No. 119 of 1973), [section][section] 5(1), 5(2) (N.Z.); High Court Ordinance (Cap. 4), [section][section] 12B(2), 12B(3) (H.K); High Court (Admiralty Jurisdiction) Act (Cap. 123), [section][section] 4(2), 4(3) (Sing.).

(100.) See International Convention for the unification of certain rules relating to the Arrest of Sea-Going Ships, May 10, 1952, 439 U.N.T.S. 193, U.K. Misc. Ser. No. 13 (1953) Cmd. 8954, arts 1(1) (listing permissible "maritime claims"), 2 (permitting arrest for "maritime claims").

(101.) No admiralty jurisdiction (or right to arrest) exists for an otherwise maritime in personam judgment. See, e.g., The City of Mecca, [1881] 6 P.D. at 114 (Eng. C.A.). The holder of an in personam judgment or arbitration award must bring a new in rem action on the same claim, if possible, to make use of the remedy of arrest. See The Alas, [2014] HKCFI 1281 (H.K. Ct. First Inst.).

(102.) See Motorola Credit Corp. v. Uzan, [2003] EWCA (Civ) 752, [[paragraph] 115] (U.K.) (ruling that a court must consider whether freezing injunction can be enforced); Ras Al Khaimah Inv. Auth. v. Bestford Inv. Ltd., [2015] EWHC (Ch) 3383 [[paragraph] 41] (Eng.) (stating that a court will not issue a "futile" freezing injunction).

(103.) See, e.g., H.M. Commsrs. of Cust. & Excise v. Barclays Bank plc, [2006] UKHL 28, [[paragraph] 11] (U.K.) (observing contempt powers against those who disobey a freezing injunction).

(104.) See, e.g., Dadourian Group Int'l Inc. v. Simms, [2004] EWCA (Civ) 686, [[paragraph] 16] (affirming a worldwide freezing order).

(105.) See ENG. CIV. PROC. R. PRAC. DIR. 25, [[paragraph] 6.2] (a court may require "undertakings" by an applicant for potential damages); Hone v. Abbey Forwarding, [2014] EWCA (Civ) 711, [[paragraph] 27] (Eng.) (noting that courts have required "cross-undertakings in damages" for interim injunctions since at least 1851); Energy Ventures Partners Ltd. v. Malabu Oil & Gas Ltd., [2014] EWCA (Civ) 1295, [[paragraph] 52-55] (Eng.) (discussing the standard for requiring claimant to "fortify" cross-undertakings with formal security).

(106.) See FED. R. CIV. P. SUPP. ADM. R. E(5).

(107.) See FED. R. CIV. P. SUPP. ADM. R. E(2)(b) (allowing discretion in requiring security for arrest or attachment).

(108.) See Tetley, supra note 37, at 1898; see also Minji Hozen Hou [Civil Provisional Remedies Act] (Law No. 91 of 1989), art. 48 (Japan) (ship seizure); Minsa-jipaeng-beop [Civil Execution Act] (Law No. 6627 of 2002), arts. 172-187 (S. Kor.) (ship seizure); Qiangzhi zhixing fa [Compulsory Execution Law] arts. 114-114-4 (R.O.C.) (ship seizure).

(109.) These restrictions often derive from former Article 215 of the French Commercial Code, which was enacted to protect the interests of cargo owners. See John M. Kriz, Ship Mortgages, Maritime Liens, and their Enforcement: the Brussels Conventions of 1926 and 1952, 1964 DUKE L.J. 70, 71-72.

(110.) See Shouhou [Comm. Code] (Law No. 48 of 1899), art. 689 (Japan); Sangbeop [Com. Code] (Law No. 1000 of 1962), art. 744 (S. Kor.); Hai Shang Fa [Maritime Law], art. 4 (China).

(111.) See FED. R. CIV. P. SUPP. R. ADM. E(4); Witham v. The James E. McAlpine, 96 F. Supp. 723, 727 (E.D. Mich. 1951) (holding that a marshal may arrest moving vessels within the district).

(112.) The maritime provisions of the German Commercial Code define the types of claims that give rise to maritime liens and state that those liens may be enforced by civil attachment. Handelsgesetzbuch [HGB] [Commercial Code] [section][section] 596(1), 601 (F.G.R.). French courts must apply the restrictions of the 1952 Arrest Convention to ships registered in Convention states. See Dec. 58-14 du 4 janvier 1958 PUBLICATION DE LA CONVENTION INTERNATIONALE POUR L'UNIFICATION DE CERTAINES REGLES SUR LA SAISIE CONSERVATOIRE DES NAVIRES DE MER ET DE LA CONVENTION INTERNATIONALE POUR L'UNIFICATION DE CERTAINES REGLES RELATIVES A LA COMPETENCE CIVILE EN MATIERE DABORDAGE, CONCLUES A BRUXELLES LE 10 MAI 1952 Journal Officiel de la Republique Francais [J.O.], Jan. 14, 1958 p. 515 (declaring adoption of the Convention). However, for non-Convention vessels, French attachment laws allow for the arrest of vessels for any legally cognizable claim. See Dec. 67-967 du 27 octobre 1967 portantstatut des navires et autresbatiments de mer, Journal Officiel de la Republique Francais [J.O.], Nov. 4, 1967, p. 10836 (Fr.); Code Transp., arts. L5114-20-L5114-29 (Fr.) (domestic ship arrest procedures). BB German: T2.15 pg. 364 French: T2.13 use J.O.

(113.) Kriz, supra note 109, at 71.

(114.) See Minji Soshou Hou [Civil Procedure Code] (Law No. 109 of 1996), art. 5(iv) (Japan); see also Minsa sosong beop [Civil Procedure Code] (Law No. 547 of 1960), art. 11 (S. Kor.); Minshi susong fa [Civil Procedure Code] art. 3 (China). In such cases, Japanese courts still do not recognize the basis of jurisdiction as in rem, and in spite of the seizure, the claim proceeds in personam. J. MARK RAMSEYER & MINORU NAKAZATO, JAPANESE LAW: AN ECONOMIC APPROACH 130 (1999).

(115.) See LAWRENCE W. NEWMAN & COLIN ONG, INTERIM MEASURES IN INTERNATIONAL ARBITRATION 460 (Juris 2014) (citing Russian Ship Case, 1610 HANJI 106 (Asahikawa D. Ct. Feb. 9, 1996)).

(116.) See Masato Miura, Judicial Jurisdiction in Japanese Conflict of Laws: Status, 21 AM. U. L. REV. 522, 525 (1972) (citing Tokyo District Court Judgment of June 11, 1959, 10 KASAI MINSHU 1204).
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