Section 11.8 Choice of Remedies

• Library: Tort Law 2016

E. (§11.8) Choice of Remedies

With a maritime tort involving a vessel, the complainant or injured party has four choices of remedy.

1. The complainant may bring an action in rem against the vessel in a federal court of admiralty.

2. The complainant may bring an action in personam against the tortfeasor and the vessel in a federal court of admiralty and join both the in personam and in rem claims in the same action. The action will be tried to a federal judge sitting without a jury.

3. The complainant may bring the action in a federal district court on the civil side in personam against the tortfeasor (provided there is an independent jurisdictional ground such as diversity of citizenship).

4. The complainant may bring an action in personam in state court against the tortfeasor in accordance with the "saving to suitors" clause.

By bringing an action in rem in a federal court of admiralty, the complainant forgoes the right of trial by jury but obtains a fund from which to satisfy a judgment. In rem actions are started with the arrest of a vessel and its detention until the underlying claim is resolved. Typically, a bond or other security is substituted for the vessel by its owner. An action in rem may be started wherever the vessel or property is located, thereby subjecting it to process and arrest in that district. FED. R. CIV. P., SUPP. R. C(2). This permits great flexibility in the event of an ocean-going or other vessel rarely found in the United States whose owner may be a foreign entity. Rule C of the Supplemental Rules for Admiralty or Maritime Claims and Asset Forfeiture Actions of the Federal Rules of Civil Procedure sets forth the procedures that apply to in rem actions.

Rule C(2)(b) and (c) provides, inter alia, that the plaintiff’s in rem complaint must "describe with reasonable particularity the property that is the subject of the action"...