Vanderbilt Journal of Transnational Law


Jon L. Goodman

First Page



In the past decade, the area of procedural due process, including traditional doctrines of in rem and quasi in rem jurisdiction, has undergone a constitutional facelift. As a result, two of admiralty's most extraordinary features--maritime attachment and garnishment and actions in rem--have been questioned from a constitutional standpoint.

The United States Supreme Court inaugurated the new era with its decision in Sniadach v. Family Finance Corp. In that case, the Court first began changing its procedural due process philosophy by broadening its conception of constitutionally protected forms of property. Having narrowly addressed itself to the question of what constitute constitutionally protectible property interests, a further inquiry arose and demanded resolution. Given the existence of a protectible property interest, the particular form of protection due process demands would have to be determined.

The Court responded to this question in Fuentes v. Shevin and Mitchell v. W. T. Grant Co. In those and subsequent decisions, the Court struggled to define the parameters of procedural due process in the context of prejudgment attachment and garnishment and replevin statutes. None of the issues addressed in the Sniadach--Mitchell line, however, have arisen in a strictly admiralty context. The maritime prejudgment attachment procedure currently provided for in Supplemental Rule B5 is, however, similar, if not identical in purpose, to those held unconstitutional in both Sniadach and Fuentes--it exists for purposes of facilitating a court's rightful assertion of jurisdiction over particular parties, and it provides potential security for the satisfaction of underlying claims. Further, both Supplemental Rules B and C, covering actions in rem, arguably lack necessary constitutional safeguards discussed in Mitchell and subsequent decisions.

Almost simultaneously, new concern about the constitutional validity of certain of the Supplemental Rules has arisen in another context, with the Supreme Court's more recent decision in Shaffer v. Heitner. Under Shaffer, the mere presence of property within the territorial bounds of a court's jurisdiction is no longer a prima facie sufficient basis for the actual assertion of its jurisdiction. Again, while not decided in an admiralty context, the Shaffer decision could have a limiting effect on admiralty quasi in rem procedures as provided for in Supplemental Rule B, especially when a court asserts its jurisdiction based solely upon the fortuitous presence of property within the territorial bounds of its jurisdiction.

The constitutionality of Supplemental Rules B and C has been undoubtedly placed in issue. The more pertinent inquiry, and one less susceptible of a definitive response, is whether, Rules B and C can withstand constitutional challenge in light of decisions such as Mitchell and Shaffer.