해사채권 가압류 제한에 관한 소고 - 미국 연방민사소송규칙 보칙 중 해사규칙 B 가압류 사건을 중심으로 -

This article explores the maritime attachment system regulated by the U.S. Federal Rule of Civil Procedure Supplemental Admiralty Rule B. It would be impossible to cover all issues regarding maritime attachment in one article, but in this piece I highlight some of the more “controversial” elements such as jurisdiction, subjects, and requirement of attachments. Especially, the discussion includes “need” and “unfair” relating to when a Rule B attachment may be had. Furthermore, I study one case recently filed at the U.S. Federal Court and then discuss some of the impacts on the practice that the order has already had. Admiralty Rule B, with its supplemental counterparts, has proved to be a dynamic remedy, whose utility only appears to be growing. To say that the law of Rule B maritime attachments has been a moving target would be a bit of an understatement. Some aspects of the Rule, such as the attachment of electronic fund transfers, remain controversial, but based upon the recent court decision, the message seems clear, at least to the federal district courts in New York, that the plain text of the Rules should be strictly adhered to. The Rule continues to stand the test of time and remains a popular weapon in a maritime litigant’s arsenal. For the Korean maritime enterprise the two implications may be suggested concerning how to avoid Rule B attachments: first, register with Secretary of State of New York, Division of Corporations, and second, appoint agent for service of process “within the federal District” (i.e., within NYC). Where a defendant is not personally served and does not personally appear in the lawsuit, he will typically enter a restricted appearance limited to protecting the attached asset from the claim. In these circumstances, the judgment rendered is limited to the value of the property attached. There is some authority that a Rule B attachment cannot be used where the sole purpose is to obtain security. Other cases state that a plaintiff’s motive for attachment is irrelevant, and as long as the required elements have been met, the attachment should be maintained. Further, once a defendant’s property has been attached, he cannot defeat the process by consenting to accept service of process or by appointing an agent to accept service after the fact. This article will provide the possible grounds to vacate Rule B attachments as follows. As a practical matter, it is very difficult, if not impossible, to vacate a Rule B attachment if a maritime claim has been properly asserted by a plaintiff. Nevertheless, in limited circumstances, a Court may vacate an attachment where a defendant sufficiently demonstrates: (i) The defendant is subject to suit in a convenient adjacent jurisdiction; (ii) The plaintiff can obtain in personam jurisdiction over the defendant in the district where the plaintiff is located; and (iii) The plaintiff has already obtained sufficient security for the potential judgment.