Local Rule Local Admiralty Rule (e): ACTIONS IN REM AND QUASI IN REM: GENERAL PROVISIONS

LOCAL ADMIRALTY RULE (e)

ACTIONS IN REM AND QUASI IN REM: GENERAL PROVISIONS

(1) Itemized Demand for Judgment. The demand for judgment in every complaint filed under Supplemental Rule B or C shall allege the dollar amount of the debt or damages for which the action was commenced; and the demand for judgment shall also allege the dollar amount of every claim for interest, costs, attorneys' fees, and other items of damage. The amount of the special bond posted under Supplemental Rule E(5) may be based upon these allegations.

(2) Salvage Actions Complaints. In an action for a salvage reward, the complaint shall allege the dollar value of the vessel, cargo, freight, and other property salved, and the dollar amount of the reward claimed.

(3) Verification of Pleadings. Every complaint in Supplemental Rule B, C and D actions shall be verified on oath or solemn affirmation by a party or by an authorized officer of a corporate party. If no party or authorized corporate officer is available, verification of a complaint may be made by an agent, attorney-in-fact, or attorney of record, who shall state the sources of the knowledge, information, and belief contained in the complaint; declare that the document verified is true to the best of that knowledge, information, and belief; state why verification is not made by the party or an authorized corporate officer; and state that the affiant is authorized so to verify. Such a verification will be deemed to have been made by the party to whom a document might apply as if verified personally. Any interested party may move the Court, with or without requesting a stay, for the personal oath of a party or of all parties, or the oath of an authorized corporate officer. If required by the Court, such verification shall be procured by commission or as otherwise ordered.

(4) Review by Judicial Officer. Unless otherwise required by a judicial officer, the review of complaints and papers called for by Supplemental Rules B(1) and C(3) does not require the affiant party or attorney to be present. The applicant for review shall include a form of order from the Clerk to the Marshal or other person or organization which, upon signature by the judicial officer, will set in motion the arrest, attachment or garnishment sought by the applicant.

(5) (A) Service of Warrants and Process of Attachment. Warrants for the arrest of a vessel, or cargo aboard a vessel, and process to attach a vessel or property aboard a vessel, shall be served only by the Marshal. If other property, tangible or intangible is the subject of the action, the warrant shall be delivered by the Clerk to a person or organization authorized to enforce it, who may be a Marshal, a person or organization contracted with by the United States, a person specially appointed by the Court for that purpose, or, if the action is brought by the United States, any officer or employee of the United States.

(B) If the tangible property to be attached or arrested is a vessel, the Marshal shall affix a copy of the process on the forward bulkhead of the wheelhouse, and at the head of one accommodation where it is visible to people embarking or disembarking the vessel at the ladder. In addition, if the vessel is moored at a shoreside facility, the Marshal shall notify the owner or manager of the facility of the fact of the arrest or attachment.

(6) Marshal's Forms. The party who requests a warrant of arrest or process of attachment or garnishment shall provide instructions to the Marshal or other process server on forms supplied by the Marshal and available from the Marshal's Office.

(7) Property in Possession of United States Officer. When the property to be attached or arrested is in the custody of an employee or officer of the United States, the Marshal will deliver a copy of the complaint and warrant of arrest or summons and process of attachment or garnishment to that officer or employee if present, and otherwise to the custodian of the property. The Marshal will instruct the officer or employee or custodian to retain custody of the property until ordered to do otherwise by the Court.

(8) Security for Costs. In an action under Supplemental Rule E, a party may file and serve upon an adverse party a notice to post security for costs. Unless otherwise ordered by the Court, the amount of security shall be $500.00. The party notified shall post security within five days after service. A party who fails to post security when due may not participate further in the proceedings, except for the purpose of seeking relief from the order.

(9) Increased Security for Costs. A party may apply to the Court for an order increasing the amount of security for costs. The Marshal shall notify the Court if a party fails to advance sums as requested, after property has been arrested, attached or garnished, and the Marshal may apply to the Court for directions if a question arises concerning the obligation of a party to advance moneys required under this rule.

(10) Marshal's Fees and Expenses. The party who first seeks arrest or attachment of property in an action under Supplemental Rule E or Fed. R. Civ. P. 4(n) shall deposit a sum of money with the Marshal to cover fees, expenses of arrest, and safekeeping charges for ten days. The Marshal is not required to execute process until the deposit is made. The sum of $5,000.00 shall suffice in any case, subject to increase or to reduction following execution, and the party shall advance additional sums from time to time as requested to cover the Marshal's estimated fees and expenses until the property is released or disposed of as provided in Supplemental Rule E.

(11) Appraisal. An order for appraisal of property so that security may be given or altered will be entered by the Clerk at the request of any interested party. If the parties do not agree in writing upon an appraiser, a judicial officer will appoint the appraiser. The appraiser shall be sworn to the faithful and impartial discharge of the appraiser's duties before any federal or state officer authorized by law to administer oaths. The appraiser shall give one day's notice of the time and place of making the appraisal to counsel of record. The appraiser shall promptly file the appraisal with the Clerk and serve it upon counsel of record. The appraiser's fee normally will be paid by the moving party, but it is a taxable cost of the action.

(12) Adversary Hearing. The adversary hearing following arrest or attachment and garnishment that is called for in Supplemental Rule E(4)(f) shall be conducted by a judicial officer.

(13) Intervenors' Claims.

(a) When a vessel or other property has been arrested, attached, or garnished and is in the hands of the Marshal or custodian substituted therefore, anyone having a claim against the vessel or property is required to present the claim by filing an intervening complaint, and not by filing an original complaint, unless otherwise ordered by a judicial officer. Upon the filing of an intervening complaint, the Clerk shall forthwith deliver a conformed copy to the Marshal, who shall deliver the copy to the vessel or custodian of the property, but the Marshal need not re-arrest or re-attach the vessel or property. Intervenors shall thereafter be subject to the rights and obligations of parties.

(b) No party may intervene without first obtaining leave of Court if intervention is sought within 15 days prior to the date for which a sale of the vessel or property has been set by the Court.

(c) An intervenor shall share the deposit for Marshal's fees and expenses in the proportion that its claim bears to the sum of all the claims.

(14) Custody of Property.

(a) Safekeeping of Property. When a vessel or other property is brought into the Marshal's custody by arrest or attachment, the Marshal shall arrange for adequate safekeeping, which may include the placing of keepers on or near the vessel, or the appointment of a facility or person as custodian of the property in place of the Marshal.

(b) Cargo Handling, Repairs, and Movement of the Vessel. Following arrest or attachment of a vessel, no cargo handling, repairs, or movement may be made without an order of Court. The applicant for such an order shall give notice to the Marshal and to all parties of record. Upon proof of adequate insurance coverage of the applicant to indemnify the Marshal for his liability, the Court may direct the Marshal to permit cargo handling, repairs, movement of the vessel, or other operations.

(c) Motion for Change in Arrangements. Before or after the Marshal has taken custody of a vessel, cargo, or other property, any party of record may move for an order to dispense with keepers or to remove or place the vessel, cargo or other property at a specified facility, to designate a substitute custodian, or for similar relief. Notice of the motion shall be given to the Marshal and to all parties of record. The judicial officer will require that adequate insurance on the property will be maintained by the successor to the Marshal, before issuing the order to change arrangements.

(d) Insurance. The Marshal may order insurance to protect the Marshal, his deputies, keepers, and substitute custodians, from liabilities assumed in arresting and holding the vessel, cargo, or other property, and in performing whatever services may be undertaken to protect the vessel, cargo, or other property, and to maintain the Court's custody. The party who applies for arrest or attachment of the vessel, cargo, or other property shall reimburse the Marshal for premiums paid for the insurance. The party who applies for removal of the vessel, cargo, or other property to another location, for designation of a substitute custodian, or for other relief that will require an additional premium, shall reimburse the Marshal therefor. The premiums charged for the liability insurance are taxable as administrative costs while the vessel, cargo, or other property is in custody of the Court.

(e) Claims by Suppliers for Payment of Charges. A person who furnishes supplies or services to a vessel, cargo, or other property in custody of the Court who has not been paid and claims the right to payment as an expense of administration shall submit an invoice to the Court for approval in the form of a verified claim at any time before the vessel, cargo, or other property is released or sold. The supplier must serve copies of the claim on the Marshal, substitute custodian (if one has been appointed), and all parties of record. The Court may consider the claims individually or schedule a single hearing for all claims.

(15) Sale of Property Not Subject to Admiralty – Rule E (9)(b) Interlocutory Sales.

(a) Notice. Unless otherwise ordered upon good cause shown or as provided by law, a notice of sale of property in an action in rem, including the terms of sale, shall be published daily for a period of six days prior to the day of sale in a newspaper of general circulation in the Division where arrest occurred and sale is to take place.

(b) Sale and Report. All sales shall be made by the United States Marshal or his authorized deputy Marshal in the name of the Marshal or by other person or organization authorized to execute the warrant or by any other person assigned by the Court. All sales are subject to confirmation by the Court. The Marshal may, without leave of Court, decline to knock down a vessel or other property to the highest bidder when the highest bid is, in his or her opinion, grossly inadequate. On the day of the sale, the Marshal shall file his report with the Clerk giving all pertinent information, including the fact of the sale, the date, the price obtained and how paid or to be paid, and the name and address of the successful bidder.

(c) Objection to Sale. An interested person may object to the sale by filing a written objection with the Clerk within two Court days following the sale, serving the objection on all parties of record, the successful bidder, and the Marshal. The Marshal is authorized to demand and receive from the objecting party a sum sufficient to pay the expense of keeping the property for at least seven days. The written objection must be endorsed by the Marshal prior to filing with the Clerk, as evidence of the acknowledgment of receipt of the deposit of the required expense funds.

(d) Confirmation of the Sale Without Motion. A sale shall stand confirmed as of course without any action by the Court unless (1) written objection is filed with the Court within the time allowed under these rules, or (2) the purchaser is in default for failure to pay the balance due to the Marshal. The purchaser in a sale so confirmed as of course shall present a form of order reflecting the confirmation of the sale for entry by the Clerk on the fourth Court day following the sale or after the balance of sale funds have been paid, whichever last occurs. The Marshal shall transfer title to the purchaser upon presentation of such order signed by the Clerk.

(e) Confirmation of the Sale Upon Motion. If an objection has been filed or if the successful bidder is in default, the Marshal, the objector, the successful bidder, or a party, may move the Court for relief. The motion will be heard summarily by a judicial officer. The person seeking the hearing on such a motion shall apply to the Court for an order fixing the date and time of the hearing and directing the manner of giving notice and shall give written notice of the motion to the Marshal, all parties, the successful bidder, and the objector. The Court may confirm the sale, order a new sale, or grant such other relief as justice requires. Notice of any hearing on such motion may be informal and, if approved by the Court, by telephone. The parties are expected to be prepared to go forward with any hearing so ordered.

(f) Disposition of Deposits.

(1) Objection Sustained. If an objection is sustained, sums deposited by the successful bidder will be returned to the bidder forthwith. The sum deposited by the objector will be applied to pay the fees and expenses incurred by the Marshal in keeping the property until it is resold, and any balance remaining shall be returned to the objector. The objector will be reimbursed for the expense of keeping the property from the proceeds of a subsequent sale.

(2) Objection Overruled. If the objection is overruled, the sum deposited by the objector will be applied to pay the expense of keeping the property from the day the objection was filed until the day the sale is confirmed, and any balance remaining will be returned to the objector forthwith.