Checklist · Maritime

Arresting a Vessel or Obtaining Its Release: A Practical Checklist

46 U.S.C. § 31301

Type: Checklist
Jurisdiction: National
Date: 2024-10-15
Topic: Maritime

This checklist covers arresting a vessel, obtaining its release, buying one free of undisclosed liens, and defending against an arrest or attachment. The pre-arrest sequence verifies vessel status, the existence of a lien, the priority position, and the daily cost of custody — the four determinations that decide whether an arrest is worth making. The arrest track covers the verified complaint, judicial review, the substitute custodian arranged in advance, and the post-seizure hearing at which the plaintiff bears the burden. The owner track is a release protocol organized around the fact that an arrested ship earns nothing and costs a great deal daily. Separate sections cover attachment where no lien exists, judicial sale as the only route to clean title, and limitation of liability. Each item names the authority and the document that establishes it.

Arresting a Vessel or Obtaining Its Release: A Practical Checklist

Maritime > Maritime Liens, Vessel Arrest, and Attachment | Published 15 October 2024 - Updated 8 April 2026 | UpLaw - uplaw.us

How to use this checklist

Track A verifies whether an arrest is worth making. Track B executes it. Track C is the owner's release protocol. Track D is attachment where there is no lien. Track E is judicial sale and distribution. Track F is buyer diligence. Track G is limitation of liability.

Do Track A completely before calling the marshal. An arrest of a vessel with no equity above senior claims produces custodia legis costs and nothing else.

Track A: Before arresting — four determinations

One — is it a vessel?

[ ] Is the object used, or capable of being used, as a means of transportation on water? Stewart v. Dutra Construction Co.
[ ] Does it have self-propulsion, a rudder, and capacity to carry people or things? Lozman v. City of Riviera Beach
[ ] No vessel means no lien, no arrest, and a wrongful arrest exposure.

Two — is there a lien?

[ ] Were the goods or services necessaries under 46 U.S.C. § 31301 — repairs, supplies, towage, dry dock or marine railway use, or the like?
[ ] Was the order placed by a person with presumed authority under 46 U.S.C. § 31341: the owner; the master; a person entrusted with management at the port of supply; or an officer or agent appointed by the owner, a charterer, an owner pro hac vice, or an agreed buyer in possession?
[ ] Confirm 46 U.S.C. § 31342 relieves the claimant of proving credit was given to the vessel.
[ ] Is there a prohibition-of-lien clause in a charter, and did the claimant have actual knowledge of it?
[ ] Were notices posted aboard, or was the clause delivered to the claimant?
[ ] Has the lien been lost by payment, waiver, or laches prejudicing an intervening interest?
[ ] For wages or maintenance and cure claims, confirm seaman status under Chandris, Inc. v. Latsis and the claim under 46 U.S.C. § 30104.

Three — where does the claim rank?

[ ] Custodia legis expenses (post-arrest) — first
[ ] Seamen's wages and maintenance and cure
[ ] Salvage and general average
[ ] Maritime tort claims
[ ] Preferred ship mortgage under 46 U.S.C. § 31322 — search recorded instruments under 46 U.S.C. § 31321
[ ] Contract liens for necessaries — inverse order of attachment, most recent first
[ ] State-created liens and non-maritime claims
[ ] Search for recorded notices of claim of lien under 46 U.S.C. § 31343
[ ] Obtain a vessel valuation
[ ] Compute: is there value above the senior claims? If not, do not arrest.

Four — what does custody cost?

Item	Daily estimate
Marshal's fee and commission
Substitute custodian
Crew wages and provisions
Repatriation reserve
Hull and liability insurance
Moorage and port charges
Bunkers for onboard systems
Security and watchkeeping
Total per day

[ ] Multiply by expected days to release or sale.
[ ] Compare to expected recovery net of senior claims.
[ ] The arresting party funds these costs initially.
[ ] If the answer is negative, consider attachment of other property or an in personam action instead.

Track B: Executing the arrest

Prepared in advance — vessels call for hours, not days

[ ] Verified complaint, sworn by a person with knowledge. Arrange foreign verification early; this is the most common cause of a missed window.
[ ] Circumstances pleaded with particularity — the vessel, the claimant, the necessaries with dates and amounts, who ordered them and on what authority, the amount unpaid, and the lien under 46 U.S.C. § 31342.
[ ] Affidavit that the vessel is or will be within the district.
[ ] Proposed warrant of arrest.
[ ] Prayer for arrest, judgment in rem, and sale under 46 U.S.C. § 31325 and 46 U.S.C. § 31326.
[ ] Substitute custodian engaged, with the rate negotiated, before the arrest.
[ ] Marshal contacted and the deposit arranged.

At filing

[ ] Judicial review of the complaint before the warrant issues; be prepared on authority to order, the necessaries characterization, and the amount.
[ ] Warrant issued and delivered to the marshal.
[ ] Arrest executed; substitute custodian takes charge.
[ ] Marshal's return obtained.

Immediately after

[ ] Confirm insurance covers the vessel in custody.
[ ] Establish the custodian's daily log and cost record.
[ ] Address crew status, wages, and repatriation.
[ ] Give notice to known lienholders.
[ ] Coordinate cost sharing with other claimants who intervene.

The post-seizure hearing

[ ] Expect a prompt hearing on days' notice.
[ ] The plaintiff bears the burden of showing why the seizure should continue.
[ ] Be prepared to prove the lien, not merely to allege it.
[ ] Anticipate a countersecurity motion if the owner counterclaims.

Ongoing management

[ ] Reduce crew to a safe minimum where flag and class permit.
[ ] Seek permission to shift to a lower-cost berth.
[ ] Move early for an interim sale if custodia legis costs are consuming the res.
[ ] Note that 28 U.S.C. § 1292 permits interlocutory appeal of orders determining rights and liabilities in admiralty.

Track C: The owner's release protocol

Hour one

[ ] Confirm the arrest, the claim, and the amount demanded.
[ ] Notify the protection and indemnity club and hull underwriters.
[ ] Quantify the daily loss: hire, cargo commitments, charter cancellation exposure, and reputational cost. This usually exceeds the claimant's daily cost by a wide margin, and it is the source of the claimant's leverage.

Hours 1–24

[ ] Offer a letter of undertaking from the club — fastest and cheapest, and accepted routinely between sophisticated parties.
[ ] Negotiate the amount: the claimant seeks the claim plus interest and costs; the owner offers the vessel's value or less.
[ ] Confirm the terms: amount; claims covered; forum submission; whether interest and costs are included; whether it is worldwide.
[ ] Alternatives: special bond, general bond (where multiple arrests are expected), or a stipulation for value.

In parallel — challenge the lien, not just the amount

[ ] Is the object a vessel?
[ ] Were the goods or services necessaries under 46 U.S.C. § 31301?
[ ] Did the ordering party have presumed authority under 46 U.S.C. § 31341?
[ ] Is there a prohibition-of-lien clause, and did the claimant have actual knowledge? Gather posted notices, prior correspondence, and evidence of prior dealings.
[ ] Has the claim been paid, waived, or barred by laches?
[ ] For a supply-chain claim, did the claimant deal with the vessel at all, or only with a trader?

Procedural moves

[ ] Demand a prompt post-seizure hearing.
[ ] Seek countersecurity where a counterclaim exists.
[ ] Preserve a wrongful arrest claim where the arrest was in bad faith, malicious, or grossly negligent — an inflated amount or the wrong vessel can qualify.
[ ] Consider limitation of liability (Track G); the period runs from written notice of a claim.
[ ] Note that release substitutes security for the res — it does not extinguish the lien, and it does not prevent arrest elsewhere unless the security is worldwide.

Track D: Attachment (no lien required)

[ ] Confirm a prima facie maritime claim exists.
[ ] Confirm the defendant cannot be found within the district after diligent inquiry, and describe the inquiry in the affidavit. A registered agent, office, or appointed representative generally defeats attachment.
[ ] Identify the property before filing: a vessel, bunkers aboard, freight, sub-freights, accounts, or tangible property.
[ ] File a verified complaint and the affidavit.
[ ] Understand the dual purpose: security plus jurisdiction to the extent of the attached property.
[ ] Prepare for a prompt vacatur motion; the plaintiff must show a valid prima facie claim, the defendant's absence, property within the district, and no bar.
[ ] Expect a countersecurity demand if the defendant counterclaims.
[ ] For defendants: establish an appointed agent in commonly used districts if the exposure warrants it, move to vacate promptly, and seek countersecurity.

Track E: Judicial sale and distribution

[ ] Obtain judgment in rem and move for sale under 46 U.S.C. § 31325 and 46 U.S.C. § 31326.
[ ] Support the motion with the valuation and the custodia legis accounting.
[ ] Give notice to all known claimants; publish as required. Notice provisions are strictly applied and claimants who do not file lose their claim against the fund.
[ ] Conduct the marshal's sale; obtain the confirmation order.
[ ] Note that a mortgagee may credit bid its debt rather than pay cash.
[ ] Confirm that the sale extinguishes all pre-existing liens and claims, with liens attaching to the proceeds — the only reliable route to clean title.
[ ] Confirm recognition of the sale in the intended flag and trading jurisdictions.
[ ] File claims with proof of each lien and its date of attachment (the inverse order rule depends on it).
[ ] Prepare the priority schedule: custodia legis; wages and maintenance and cure; salvage and general average; tort claims; preferred mortgage under 46 U.S.C. § 31322; necessaries in inverse order; state-created liens; owner's equity.
[ ] Confirm vessel documentation status under 46 U.S.C. § 12101 and 46 U.S.C. § 12105 where preferred mortgage status is contested.

Track F: Buyer diligence

[ ] Assume undisclosed liens exist. Registry title says nothing about them.
[ ] Search recorded instruments under 46 U.S.C. § 31321 for mortgages under 46 U.S.C. § 31322.
[ ] Search recorded notices of claim of lien under 46 U.S.C. § 31343.
[ ] Obtain the vessel's trading history, port calls, and supplier list for the preceding period.
[ ] Obtain confirmation that crew wages and repatriation costs are current.
[ ] Obtain confirmation of bunker, repair, agency, and stevedoring accounts.
[ ] Review charters for prohibition-of-lien clauses and whether notices were posted.
[ ] Where the seller is distressed, structure as a JUDICIAL SALE under 46 U.S.C. § 31326 — the only mechanism that reliably extinguishes prior liens.
[ ] On a private sale: obtain warranties and indemnities from a seller with assets, an escrow holdback sized to the risk, and a survival period long enough to surface stale claims.
[ ] Consider whether an owner insolvency is likely; 11 U.S.C. § 362, 11 U.S.C. § 507, and 11 U.S.C. § 541 will then govern, and a pre-petition arrest may be preferable subject to preference analysis.

Track G: Limitation of liability

[ ] Calendar the filing period from WRITTEN NOTICE OF A CLAIM under 46 U.S.C. § 30501 — it runs from notice, not from suit, and it is short.
[ ] Value the vessel and pending freight; obtain an appraisal.
[ ] Deposit security under 46 U.S.C. § 30511.
[ ] Analyze privity or knowledge under 46 U.S.C. § 30505: for a corporate owner, knowledge of managing officers and supervisory personnel is imputed, and an unseaworthy condition the owner knew or should have known of defeats limitation.
[ ] Confirm the scope of claims subject to limitation under 46 U.S.C. § 30503 and 46 U.S.C. § 30506.
[ ] Obtain the injunction consolidating claims into the concursus.
[ ] Give notice to claimants and set the claims bar date.
[ ] For a single claimant: consider stipulating to the owner's right to litigate limitation in the federal action and to the adequacy of the fund, to preserve a jury trial elsewhere, per Lewis v. Lewis & Clark Marine, Inc. and the savings-to-suitors clause at 28 U.S.C. § 1333.
[ ] Coordinate with any pending arrest; limitation caps total exposure while arrest secures a share of it.
[ ] For personal injury and death claims in the concursus, note the damages framework in Miles v. Apex Marine Corp., The Dutra Group v. Batterton, Norfolk Shipbuilding & Drydock Corp. v. Garris, and Exxon Shipping Co. v. Baker.

Jurisdictional screen

[ ] Admiralty jurisdiction under 28 U.S.C. § 1333, with the savings-to-suitors clause preserving other remedies.
[ ] For a contract claim: is the subject matter maritime? See Exxon Corp. v. Central Gulf Lines, Inc. on agency contracts.
[ ] For a tort claim: location on navigable water or causation by a vessel, plus potential disruption to maritime commerce and a substantial relationship to traditional maritime activity — Jerome B. Grubart, Inc. v. Great Lakes Dredge & Dock Co., Sisson v. Ruby, Foremost Insurance v. Richardson, and Executive Jet Aviation, Inc. v. City of Cleveland.
[ ] For product damage to itself: East River Steamship Corp. v. Transamerica Delaval Inc. channels the claim into warranty; Saratoga Fishing Co. v. J. M. Martinac & Co. treats user-added equipment as other property for a later purchaser.
[ ] For forum clauses: The Bremen v. Zapata Off-Shore Co. and Atlantic Marine Constr. Co. v. United States Dist. Court for Western Dist. of Tex. make them very hard to escape, though a forum clause does not itself defeat an in rem arrest elsewhere.
[ ] For state court proceedings under the savings clause: American Dredging Co. v. Miller permits the state's own forum non conveniens rules.

Priority worksheet

Complete before arresting and again before distribution.

Rank	Claim class	Date of attachment	Notes
1	Custodia legis (post-arrest)	—	funded by arrestor initially
2	Seamen's wages, maintenance and cure		most favored
3	Salvage and general average
4	Maritime torts (injury, collision)
5	Preferred mortgage (46 U.S.C. § 31322)	filing date	search 46 U.S.C. § 31321
6	Necessaries — inverse order, latest first		date of attachment governs
7	State-created and non-maritime liens
8	Owner's equity	—	rarely anything

	Amount
Estimated vessel value
Less senior claims above the claimant's rank
Less projected custodia legis to sale
Available to the claimant
Claimant's claim
Arrest economically justified?

Lien verification card

Question	Answer	Evidence
Is it a vessel?		physical characteristics, use, capability
Were the goods or services necessaries (46 U.S.C. § 31301)?		contract, delivery records
Who ordered them?		purchase order, correspondence
Does that person have presumed authority (46 U.S.C. § 31341)?		role: owner / master / manager at the port / agent of owner, charterer, owner pro hac vice, or agreed buyer
Delivery receipt signed aboard?		receipt
Direct communication with the vessel or its agents?		correspondence
Prohibition-of-lien clause in any charter?		charter party
Did the claimant have actual knowledge of it?		posted notices, prior dealings, correspondence
Paid, waived, or barred by laches?		account statement, timeline
Recorded notice of claim of lien filed (46 U.S.C. § 31343)?		search

Release security terms

Term	Claimant position	Owner position	Agreed
Form: bond / letter of undertaking / stipulation for value / general bond
Amount
Claims covered
Interest included?
Costs included?
Forum submission
Issuer (club, underwriter, surety) and its rating
Worldwide effect (prevents arrest elsewhere)?
Events triggering payment
Expiry or evergreen

Reminder. Release substitutes security for the res. It does not extinguish the lien, and without worldwide effect it does not prevent arrest in another jurisdiction.

Go / no-go decision card

[ ] Vessel status confirmed
[ ] Lien elements verified
[ ] Priority position computed against vessel value
[ ] Custodia legis daily cost and runway budgeted
[ ] Substitute custodian engaged with a negotiated rate
[ ] Verified complaint sworn and ready
[ ] Vessel arrival confirmed
[ ] Marshal contacted and deposit arranged
[ ] Cost sharing discussed with any known co-claimants
[ ] Wrongful arrest exposure assessed
[ ] Decision: arrest / attach other property / proceed in personam / do nothing

Arresting a Vessel or Obtaining Its Release: A Practical Checklist

How to use this checklist

Track A: Before arresting — four determinations

Track B: Executing the arrest

Track C: The owner's release protocol

Track D: Attachment (no lien required)

Track E: Judicial sale and distribution

Track F: Buyer diligence

Track G: Limitation of liability

Jurisdictional screen

Priority worksheet

Lien verification card

Release security terms

Go / no-go decision card

Related Documents