I. The Facts.

On January 15,1970, Polar Shipping Limited (“Polar”), as owner, and Oriental Shipping Corporation, as charterer, entered into a charter of the vessel M/T Polar Saturn, since renamed Globtik Saturn. The charter was amended to name Oriental and S.S. Sanko Co., Ltd., jointly and severally, as charterers. Oriental is now called Taiwan Marine Corporation. We refer to the charterers as “Sanko.”

The charter, a printed form known as a “SHELLDEMISE,” was for a term of nine years, with provisions for an extension and for redelivery of the vessel upon expiration. Clause 22 of the charter provided:

Claiming expiration of the charter, Polar demanded redelivery of the vessel. Sanko failed to redeliver and, on March 13, 1979, Polar filed this action against Sanko in the United States District Court for the District of Hawaii, invoking admiralty jurisdiction ( 28 U.S.C. § 1333 ), alleging breach of the charter, and claiming damages of at least $1,000,000. Polar also obtained a writ of foreign attachment and garnishment, pursuant to Rule B of the Supplemental Rules for Certain Admiralty and Maritime Claims to the Federal Rules of Civil Procedure (“Supplemental Rule B”). The writ eventually resulted in the attachment in Hawaii of *630 $907,324.51 that Pacific Resources, Ltd. owed to Sanko as freight charges of the Globtik Saturn. On April 24, 1979, the district court ordered Pacific Resources, Ltd. to pay that sum into the registry of the court.

Under Supplemental Rule B, in personam jurisdiction over the defendant is obtained by compelling its appearance through attachment of its goods and chattels, or credits and effects. See Swift & Co. Packers v. Compania Columbiana del Caribe, 1950, 339 U.S. 684 , 70 S.Ct. 861 , 94 L.Ed. 1206 ; see generally 7A Moore’s Federal Practice, ¶ B.02 at B-51 (2d ed. 1981).

On May II, 1979, Sanko moved, under F.R.Civ.P. 12(b), to dismiss Polar’s complaint and to vacate the writ of attachment on the ground that clause 22 of the charter precluded the exercise of jurisdiction by the district court. Alternatively, Sanko argued that the attachment procedure provided by Supplemental Rule B violated its rights to due process as guaranteed by the Fifth Amendment of the United States Constitution.

On June 18, 1979, Polar demanded arbitration of the dispute. In its opposition to Sanko’s motion to dismiss, Polar asked the court to retain jurisdiction and maintain the security obtained by the writ of attachment pending an arbitral decision, pursuant to Section 8 of the Federal Arbitration Act, 9 U.S.C. § 8 (1976). Sanko responded that Polar’s demand for arbitration was untimely under clause 22 and that the claim should be referred to the High Court of Justice in London for a determination on the merits.

On June 27, 1979, the court ruled that clause 22 of the charter is a valid forum selection clause. The court stated:

The court, without addressing the due process issues raised by Sanko, dismissed Polar’s complaint without prejudice and vacated the writ of attachment. Polar appeals from that order. On appeal, Sanko reasserts its constitutional challenge to Supplemental Rule B.

On July 10, 1979, Polar filed its Notice of Appeal and a stipulation whereby the parties agreed that Polar would deposit $125,-000 into the registry of the district court and Sanko’s freight would remain under attachment pending the outcome of this appeal.

On July 20, 1979, the English High Court of Justice denied Polar’s motion to compel arbitration on the ground that Polar had not timely demanded arbitration. The action is now pending before the High Court of Justice for a determination on the merits.

The judgment, on its face, dismisses the complaint, rather than the action. Nevertheless, the judgment, and the order vacating the attachment, are appealable. Swift & Co. Packers, supra, 339 U.S. at 688-689 , 70 S.Ct. at 864-865 .

II. The Nonconstitutional Issues.

Both constitutional and nonconstitutional issues have been raised on this appeal. We should not pass upon a constitutional question, although it be properly presented by the record, if there is a non-constitutional ground upon which the case may be decided. See Wood v. Strickland, 1975, 420 U.S. 308, 314 , 95 S.Ct. 992, 996 , 43 L.Ed.2d 214 . If this court affirms the order of the district court on other than constitutional grounds, it need not reach Sanko’s constitutional challenge to the maritime attachment procedures of Supplemental Rule B. Therefore, we first address the nonconstitutional issues raised by Polar.

A. Section 8 of the Arbitration Act.

Polar does not challenge the district court’s ruling that clause 22 of the charter is enforceable, and it therefore concedes that the merits of this dispute are to be determined by the English High Court of Justice. Polar argues, however, that be *631 cause clause 22 of the charter includes a foreign arbitration provision, Polar has a statutory right, under section 8 of the Arbitration Act, to have the security provided by the writ of attachment maintained, pending a determination of the merits in London. We do not agree.

The right to compel arbitration under the Arbitration Act depends on the existence of a contract to arbitrate, 9 U.S.C. § 2 . Here, one term of the contract is that a party may “elect” arbitration, and that “such election shall be made by written notice ... no later than 21 days after receipt of a notice given by one party to the other of a dispute having arisen under this charter.” The High Court has held that the election was not made within the prescribed time, and thus the right to arbitration never came into being. Section 8 provides that “the court shall then [i.e., after libel and seizure of the vessel or other property] have jurisdiction to direct the parties to proceed with the arbitration and shall retain jurisdiction to enter its decree upon the award.” Here, the court cannot direct arbitration, and there will be no award upon which to enter a decree. This case, therefore, is now in the same posture as if the charter did not contain a provision for arbitration but merely a foreign court selection clause.

In view of our holding, we need not decide the issue raised by Sanko, whether the maintenance of an attachment pending arbitration, as provided by section 8, is barred by the Convention on the Recognition and Enforcement of Foreign . Arbitration Awards, acceded to by the United States in 1970, 21 U.S.T. 2517, T.I.A.S. No. 6997, and implemented by Chapter 2 of the Arbitration Act, 9 U.S.C. §§ 201-08 (1970). See Parsons & Whittemore Overseas Co., Inc. v. Societe Generale De LTndustrie, 2 Cir., 1974, 508 F.2d 969 .

B. The Foreign Court Selection Clause and Supplemental Rule B.

The next issue is whether Polar has a right under Supplemental Rule B to the maintenance of security by the district court notwithstanding that section 8 is inapplicable, and notwithstanding the presence of a foreign court selection clause.

In admiralty actions, a foreign court selection clause will be enforced unless the resisting party can “clearly show that enforcement would be unreasonable and unjust, or that the clause was invalid for such reasons as fraud or overreaching.” The Bremen v. Zapata Off-Shore Co., 1972, 407 U.S. 1, 15 , 92 S.Ct. 1907, 1916 , 32 L.Ed.2d 513 . See also Tai Kien Indus. Co., Ltd. v. M/V Hamburg, 9 Cir., 1976, 528 F.2d 835 , 836. In this case, no such showing has been made, and therefore the foreign court selection clause must be specifically enforced. Indeed, Polar does not challenge the enforceability of the clause.

Polar argues that the court erred in unconditionally dismissing the action and vacating the writ of attachment, and that the court should either have maintained the attachment pending a judgment by the High Court of Justice, or conditioned dismissal of the complaint and vacating the writ upon the posting of adequate security in London.

It is clear from The Bremen and its Ninth Circuit progeny that where there is an enforceable foreign court selection clause, dismissal of the action is generally appropriate. See Tai Kien Industries Co., Ltd., supra; Republic International Corp. v. Amco Engineers, Inc., 9 Cir., 1975, 516 F.2d 161, 168 . However, neither the Supreme Court in The Bremen , nor this court, has addressed the issue of whether, in an admiralty and maritime action where there is an enforceable foreign court selection clause, the district court, instead of unconditionally dismissing the action, may ensure the availability of security pending a determination of the merits in the contractually selected forum.

In Sanko Steamship Co. v. Newfoundland Refining Co., Ltd., S.D.N.Y., 1976, 411 F.Supp. 285 , aff’d, 2 Cir., 1976, 538 F.2d 313 , cert. denied, 429 U.S. 858 , 97 S.Ct. 158 , 50 L.Ed.2d 136 , the district court considered a forum selection clause similar to the one before us. After filing its complaint, the *632 plaintiff Sanko, pursuant to Supplemental Rule B and by an order to show cause, sought an attachment under provisions of New York C.P.L.R. § 6201. That section provides for an attachment “when: 1. the defendant is a foreign corporation or not a resident or domiciliary of the state. . .. ” The defendants moved to dismiss on the ground that the forum selection clause precluded the plaintiff from invoking the jurisdiction of the district court. The court held that The Bremen required dismissal of the action, although it noted that “no question of the validity of an attachment was before the Court in that case.” ( 411 F.Supp. at 286 ). We cannot agree with this holding. We find nothing in The Bremen that mandates dismissal of every action brought in a forum other than the one specified in a valid forum selection clause. Nor does the absence of an express provision in either Supplemental Rule B or in any federal statute authorizing the maintenance of an attachment pending a judgment by the selected forum persuade us that the court may not do so to ensure the availability of security to satisfy a judgment by the selected forum.

The enforceability of foreign court selection clauses is a matter of judicially-created contract law. See The Bremen, 407 U.S. at 11-12 , 92 S.Ct. at 1913-1914 . The question, then, is, what does the contract permit or require? Does it permit attachment in another forum, and maintenance of the attachment pending decision in the contractually selected forum? Or does it prohibit attachment in another forum, and thus require that any such attachment, if obtained, be vacated?

In The Bremen , the Court expressly rejected the argument that foreign court selection clauses “oust” a district court of jurisdiction. 407 U.S. at 12 , 92 S.Ct. at 1914 . The Court said:

Thus, because the scope and enforcement of a forum selection clause is a matter of contract, the intent of the parties governs the extent to which the non-selected court may exercise its jurisdiction.

Clause 22 provides that “[a]ny dispute arising under the charter shall be decided by the English Courts.” It is clear, therefore, that the parties intended' that they would litigate the merits of any dispute arising under the charter, whether in an action in personam or in one in rem, in an English forum. See The Bremen, supra, 407 U.S. at 20 , 92 S.Ct. at 1918 . There is, however, no indication, from either the charter or the record, that the parties intended to limit proceedings to obtain prejudgment security to that forum. If the parties had so intended they could easily have worded clause 22 to so provide. They did not do so.

In The Bremen , the forum selection clause stated that “[a]ny dispute arising must be treated before the London Court of Justice.” 407 U.S. at 2 , 92 S.Ct. at 1909 . The Court stated that “the language of the clause is clearly mandatory and all-encompassing.” Id. at 20 , 92 S.Ct. at 1918 . That statement, however, was made in reference to whether the clause encompassed actions in rem as well as actions in personam. The Court did not consider whether prejudgment security proceedings or post-judgment enforcement actions are within the scope of the forum selection clause. An attachment does not fit neatly within the word “dispute.”

Clause 22 provides that the charter shall be construed in accordance with the law of England. Under English law, as under United States law, the enforceability of a foreign court selection clause is a matter of judicial discretion. See The Eleftheria, [1969] 1 Lloyd’s List L.Rep. 237 (Q.B. 1969), cited in The Bremen, 407 U.S. at 11 n.12, 92 S.Ct. at 1913 n.12; Unterweser Reederei G. m. b. v. Zapata Off-Shore Co. [The Chaparral], [1968] 2 Lloyd’s List L.Rep. 158 (CA) (the English court proceedings in The Bremen case). The English rule *633 provides that the enforcing court may take steps to ensure the plaintiff of adequate security to prevent prejudice that might otherwise result from the enforcement of a forum selection clause. See, e.g., The Eleftheria, at 246; The Makefjell [1975] 1 Lloyd’s List L.Rep. 528 (Q.B.1975), aff’d [1976] 2 Lloyd’s List L.Rep. 29 (Ct. of App. 1976). Thus, under the law chosen by the parties here to govern the construction of their charter, it appears that the foreign court selection provision of clause 22 does not preclude Polar from obtaining prejudgment security by maritime attachment in the district court or preclude the district court from ensuring the availability of adequate security in the selected court before dismissing the action.

We think that strong policy reasons also support the conclusion just stated. A primary reason for parties to agree to a foreign court selection clause, particularly one that names the English courts, is to achieve a neutral forum and to take advantage of that forum’s expertise in admiralty litigation. The Bremen, supra, 407 U.S. at 11-12 , 92 S.Ct. at 1913-1914 . In many admiralty actions, it would be merely fortuitous if the foreign forum, selected for its neutrality and expertise, also had available assets of the defendant to ensure that a judgment rendered by that forum would be enforceable there. We note that Polar is a Liberian corporation, with an office and business in New York, Oriental is a Liberian corporation, with an office and place of business in Japan, and Sanko is a Japanese, corporation, with an office and place of business in Japan. For the court to infer that parties to a clause, which provides that all disputes under the charter shall be determined by a selected foreign court, intended that proceedings to obtain prejudgment security be limited to that foreign forum, could substantially prejudice an admiralty plaintiff, by leaving it without an effective remedy.

The dissent in the decision of the Court of Appeals in The Bremen , cited with approval by the Supreme Court, 407 U.S. at 10 , 92 S.Ct. at 1913 , stated that “[a] court may postpone declining jurisdiction until it is sure the foreign court will hear the dispute and provide a remedy.” In re Unterweser Reederei, GMBH, 5 Cir., 1970, 428 F.2d 888, 906 (Wisdom, J., dissenting).

We hold that in an admiralty action, absent express intent to the contrary, a forum selection clause providing that all disputes under the charter will be determined by a selected foreign court neither precludes a plaintiff from commencing an action in the district court to obtain security by maritime attachment, nor prohibits the district court from ensuring the availability of security adequate to satisfy a favorable judgment by the selected forum.

Where, as here, there is a valid and enforceable foreign court selection clause, the district court should exercise its jurisdiction only to the extent necessary to ensure that the plaintiff has an adequate remedy. Where evidence shows that the plaintiff would not be prejudiced by the vacating of prejudgment security, the district court can unconditionally dismiss the action and vacate the writ of attachment. Where the plaintiff would be prejudiced by that action, the district court should either condition its order upon the posting of adequate security in the selected forum, or retain jurisdiction to preserve the security obtained. Absent an express contract to the contrary, the district court has discretion in determining whether it should exercise its jurisdiction to ensure the availability of prejudgment security or unconditionally dismiss the action.

Sanko argues that the district court exercised its discretion here, by unconditionally dismissing Polar’s complaint and vacating the writ of attachment. There is, however, no indication that the district court thought that it had any discretion. Moreover, the parties take conflicting positions as to whether Polar would be prejudiced by the unconditional dismissal of this action, and the district court did not address this conflict in its Order. Therefore, if no other issues were presented on this appeal, remand would be appropriate to afford Sanko the opportunity to carry its burden of showing that Polar will not be prejudiced if this action is unconditionally dismissed.

*634 C. The District Court’s Discretion.

We do not think that we should remand this case for the court to exercise its discretion without passing upon the Constitutional attacks on Supplemental Rule B. This is because one of the things that the court could do, if the attachment is valid, is to maintain it pending the decision of the English High Court. It would be a disservice to the district court, and a likely source of another appeal, if we were now to refuse to decide the validity of the attachment, leaving that question to the district court. That court, on remand, should know what options are open to it.

D. Mootness.

The Sanko freight charges remain under attachment, pursuant to an agreement of the parties, as consideration for the deposit of cash into the registry by Polar, in lieu of a supersedeas bond. This did not moot the question of the validity of the attachment. It remains a “present, live controversy,” Hall v. Beals, 1969, 396 U.S. 45, 48 , 90 S.Ct. 200, 201 , 24 L.Ed.2d 214 , which should be decided by this court, not only because the funds remain under attachment, but also because Sanko would continue to be adversely affected by the writ of attachment in the event of a remand. The writ of attachment was used to obtain jurisdiction over Sanko and no other base of jurisdiction is asserted by Polar. Thus, Sanko would not be before the district court on such remand, absent the initial invocation of Supplemental Rule B procedures.

In addition, as a practical matter of judicial administration, it would be inappropriate to remand to the district court for reconsideration of the appropriateness of a writ of attachment, if the procedures by which the writ was originally issued are unconstitutional, and the challenge to their constitutionality was made below and on this appeal. If we were to hold Supplemental Rule B unconstitutional, that would be the end of this case. We therefore conclude that the due process issues are properly before us and that it is appropriate to resolve them now.

III. The Constitutional Issues.

A. Our Authority to Consider the Constitutionality of Supplemental Rule B.

Supplemental Rule B was promulgated by the Supreme Court. 383 U.S. 1029 , 1071-1085, 86 S.Ct. 200 -211 (1966). This was done pursuant to an act of Congress, 28 U.S.C. § 2072 , which states “The Supreme Court shall have power to prescribe by general rules, the form of process, writs .. . and the practice and procedure of the district courts . .. in . . . admiralty and maritime cases.. .. ” The rules are to become effective 90 days after they have been reported to the Congress by the Chief Justice.

There has been much debate as to whether the Court has inherent power to prescribe such rules, or can do so only when the power is delegated to it by the Congress. See Wigmore, All Legislative Rules for Judiciary Procedure are Void Constitutionally, 23 Ill.L.Rev. 276 (1928); Pound, The Rule-Making Power of the Courts, 12 A.B.A.J. 599 (1926); Clinton, Rule 9 of the Federal Habeas Corpus Rules: A Case Study on the Need for Reform of the Rules Enabling Acts, 63 Iowa L.Rev. 15 n.26 (1977); Separation of Powers and the Federal Rules of Evidence, 26 Hastings L.J. 1059 (1975); Wright, Procedural Reform: Its Limitations and Its Future, 1 Ga.L.Rev. 563 (1967); Levin & Amsterdam, Legislative Control Over Judicial Rulemaking: A Problem in Constitutional Revision, 107 U.Pa.L. Rev. 1 (1958); Clark, Power óf the Supreme Court to Make Rules of Appellate Procedures, 49 Harv.L.Rev. 1303 (1936); Sunder-land, Character and Extent of the Rule-Making Power Granted U. S. Supreme Court and Methods of Effective Exercise, 21 A.B.A.J. 404 (1935); Brown, Federal Rulemaking: Problems and Possibilities, Report by the Federal Judicial Center (June 1981).

We need not concern ourselves with this debate. In Sibbach v. Wilson & Co., Inc., 1941, 312 U.S. 1, 9-10 , 61 S.Ct. 422, 424 , 85 L.Ed. 479 , the Court said: “Congress has *635 undoubted power to regulate the practice and procedure of federal courts, and may exercise that power by delegating to this or other federal courts authority to make rules not inconsistent with the statutes or Constitution of the United States” [footnotes omitted].

It has been established, at least since Marbury v. Madison, 1803, 5 U.S. (1 Cranch) 137 , 2 L.Ed. 60 , that the Supreme Court has and this court since its creation has had both the power and the duty to pass upon the validity of an act of Congress when that question comes before it in a case or controversy. Surely our power and duty are no less in relation to a rule promulgated under a delegation from Congress. As the Court said in a case involving Rule 4(f) of P.R. Civ.P., “The fact that [the Supreme] Court promulgated the rules as formulated and recommended by the Advisory Committee does not foreclose consideration of their validity, meaning or consistency.” Mississippi Publishing Corp. v. Murphree, 1946, 326 U.S. 438,444 , 66 S.Ct. 242,245 , 90 L.Ed. 185 . In Miranda v. Arizona, 1966, 384 U.S. 436, 491 , 86 S.Ct. 1602, 1636 , 16 L.Ed.2d 694 , the Court said: “Where rights secured by the Constitution are involved, there can be no rule-making or legislation which would abrogate them.”

The Supplemental Rules were not adopted in the process of deciding a “case” or “controversy” within the judicial power as defined in Article III, Section 2, clause 1 of the Constitution. They were drafted by an advisory committee, considered by the Judicial Conference, presented to the Court, and by it presented to Congress, which allowed them to become effective. Thus they resemble legislation, and are quite different from a ruling on a question of constitutional law by the Court in a case or controversy. They are open to attack in such a case, as much in the district court or in this court as in the Supreme Court, just as a statute is.

A holding that the Supreme Court is the exclusive forum for the constitutional review of such rules would mean that litigants would be precluded from obtaining a determination of constitutional challenges to such rules, unless and until the Supreme Court granted a writ of certiorari or considered an appeal to consider such challenges, which would have had to be raised, but could not be decided, below. We are satisfied that we have not only the authority, but also a duty, to consider the constitutional challenge to Supplemental Rule B presented by Sanko. See Amstar Corp. v. S/S Alexandros T., 4 Cir., 1981, 664 F.2d 904, 906 .

To the extent that Harris v. Zion’s Savings Bank, 10 Cir., 1942, 127 F.2d 1012, 1015 , and In re Bronx Ice Cream Co., Inc., 2 Cir., 1933, 66 F.2d 620, 624 , appear to be to the contrary, we decline to follow them.

B. The Validity of Supplemental Rule B.

Supplemental Rule B provides in part:

Sanko argues that the attachment procedure provided by Supplemental Rule B violates the due process clause of the Fifth Amendment because it resulted in a deprivation of property without prior notice and hearing, or other procedural safeguards.

The Supreme Court has sanctioned the process of maritime attachment, in the face of attacks on grounds other than those urged by Sanko. See, e.g., Swift & Co., supra, 1950, 339 U.S. 684 , 70 S.Ct. 861 , 94 L.Ed.2d 1206 ; Manro v. Almeida, 1825, 23 U.S. (10 Wheat.) 473, 490 , 6 L.Ed. 369 . However, neither that Court nor this court has considered the constitutionality of Supplemental Rule B, on its face or as applied in light of the due process requirements delineated in Sniadach v. Family Finance Corp., 1969, 395 U.S. 337 , 89 S.Ct. 1820 , 23 L.Ed.2d 349 , and the line of cases that have followed. See Fuentes v. Shevin, 1972, 407 U.S. 67 , 92 S.Ct. 1983 , 32 L.Ed.2d 556 ; Mitchell v. W. T. Grant Co., 1974, 416 U.S. 600 , 94 S.Ct. 1895 , 40 L.Ed.2d 406 ; Calero-Toledo v. Pearson Yacht Leasing Co., 1974, 416 U.S. 663 , 94 S.Ct. 2080 , 40 L.Ed.2d 452 ; North Ga. Finishing, Inc. v. Di-Chem, Inc., 1975, 419 U.S. 601 , 95 S.Ct. 719 , 42 L.Ed.2d 751 . We proceed to do so.

1. The Special Character of Admiralty Proceedings.

Article III, Section 2, clause 1 of the Constitution provides: “The judicial power shall extend ... to all cases of admiralty and maritime jurisdiction. ...” This jurisdiction is of ancient origin, preceding the independence of the United States and the founding of the Republic. Admiralty law is a species of international law, administered by the courts of maritime nations, including specifically the courts of the United States.

The process of maritime attachment, now provided for in Supplemental Rule B, is at least as old as the Republic. Its history in American courts is outlined in the opinion of Justice Johnson in Manro v. Almeida, supra, 23 U.S. (10 Wheat.) at 487 — 494. At pages 491 — 492, the Court said:

As the Court said in Swift & Co. Packers, supra, 339 U.S. at 693 , 70 S.Ct. at 867 :

See also San Rafael Compañía Naviera, S.A. v. American Smelting & Refining Co., *637 9 Cir., 1964, 327 F.2d 581 , 589, “Foreign attachment ... is ‘old process’ in admiralty and is recognized in Admiralty Rule 2.” That rule was the predecessor of Supplemental Rule B.

In a case in which Supplemental Rule C, dealing with actions in rem in admiralty, was attacked as unconstitutional on grounds similar to those asserted before us, Merchants Nat. Bank v. Dredge Gen. G. L. Gillespie, 5 Cir., Unit A, 1981, 663 F.2d 1338, at 1343 , Judge John R. Brown said:

See also Amstar Corp. v. S/S Alexandros T., 4 Cir., 1981, 664 F.2d 904 , which also upholds Supplemental Rule C. Judge Brown expressly limited his decision to Supplemental Rule C, and refrained from intimating any opinion concerning a writ of foreign attachment to obtain jurisdiction over a non-resident defendant in an in per-sonam suit, such as we have before us. (Id., n.9.) It may also be that foreign attachment in an in personam action in admiralty is not as ancient a remedy as a libel in rem against a ship. Nevertheless, we think that the principle announced by Judge Brown is also applicable to Supplemental Rule B. It comes before us with a strong presumption that it is constitutionally valid.

2. The Rationale for Supplemental Rule B.

As we have seen, there are two reasons for the procedure authorized in Supplemental Rule B: to assure a respondent’s appearance, and to assure satisfaction in case the suit is successful. Swift & Co. Packers, supra, 339 U.S. at 693 , 70 S.Ct. at 867 . Both are of great importance in admiralty and maritime cases. Maritime law deals primarily with ships that sail the seven seas. A ship may be here today and gone tomorrow, not to return for an indefinite period, perhaps never. Assets of its owner, including debts for freights, as in this case, within the jurisdiction today, may be transferred elsewhere or paid off tomorrow. It is for these reasons that maritime actions in rem, libelling a ship or other assets of a defendant, Supplemental Rule C, or attachment in actions in personam, Supplemental Rule B, were developed. These reasons are as valid today as they ever were. Particularly in the case of debts and credits, such as the debt for freight that was attached in this case, they are necessary and valid today. In this electronic age, freights owing to a charterer, such as Sanko, can be transferred instanter, by electronic orders, from, say, Honolulu, to, say, a numbered bank account in a bank in Switzerland or some other non-maritime haven. The need to attach now and notify later is as great now as it ever was, if not greater. A ship can quietly slip its moorings and depart the jurisdiction. It can easily take with it such tangible property as may be within the jurisdiction. And credits can be quickly transferred elsewhere. These considerations, too, militate in favor of the validity of Supplemental Rule B.

3. Pre-attachment Proceedings.

Supplemental Rule B is attacked here as unconstitutional because the writ can be issued on the affidavit of the creditor or its attorney, who need not have personal knowledge of the facts, is issuable by the *638 clerk, without participation by the judge, and no notice to the defendant is required before the attachment is levied.

a. Pre-attachment notice.

Due process does not require pre-attachment notice. Such notice could readily defeat the whole proceeding. The ship, if it were being libelled under Supplemental Rule C, could depart beyond the jurisdiction; the other property, to be seized under Supplemental Rule C, or attached under Supplemental Rule B, could be shipped out, otherwise disposed of, or concealed; credits, such as are here involved, could be collected or transferred out of the jurisdiction. See Merchants National Bank, supra, 663 F.2d at 1344 ; Amstar Corp., supra, 664 F.2d at 911 .

Sniadach, supra, and its progeny are not to the contrary. Sniadach dealt with garnishment of wages in a local common law action. The Court emphasized that “the wage earner is deprived of his enjoyment of earned wages without any opportunity to be heard and to tender any defense he may have....” 395 U.S. 337, 339 , 89 S.Ct. 1820, 1821 , 23 L.Ed.2d 349 . This is a far cry from the case at bar.

In Fuentes v. Shevin, the Court stated that notice and an opportunity for a hearing prior to depriving a person of “any significant property interest” generally are constitutional requirements. 407 U.S. at 82, 92 S.Ct. at 1995. There the Court struck down Florida and Pennsylvania laws that authorized the summary seizure of personal property under a writ of replevin. Both statutes provided for the issuance of the writs upon an ex parte application, accompanied by a security bond. Neither statute provided for notice to the person in possession of such property, or provided for a pre-seizure hearing. The eases reviewed in Fuentes involved replevin of goods purchased under conditional sales contracts — a gas stove, a phonograph, a bed, a table, other household goods, and a father’s attempt to recover a small boy’s clothing, furniture, and toys. Again this is a far cry from the case at bar.

Moreover, the Court in Fuentes distinguished attachments from “outright seizures” of property and noted that it had allowed an attachment of property without a prior hearing in three cases. Fuentes, 407 U.S. at 91 n.23, 92 S.Ct. at 1999 n.23. In Coffin Bros. & Co. v. Bennett, 1928, 277 U.S. 29 , 48 S.Ct. 422 , 72 L.Ed. 768 , attachment was necessary because of the immediate harm resulting from a bank failure. Id. In Ownbey v. Morgan, 1921, 256 U.S. 94 , 41 S.Ct. 433 , 65 L.Ed. 837 , the attachment was necessary to secure jurisdiction in state court — “clearly a most basic and important public interest.” Id. The Court was unclear as to the interests involved in McKay v. Mclnnes, 1929, 279 U.S. 820 , 49 S.Ct. 344 , 73 L.Ed. 975 , Id. In the case at bar, one of the purposes of the attachment, as in Own-bey, was to secure jurisdiction.

The Court in Fuentes was also at pains to point out that the procedures to obtain and to execute a writ of replevin in the cases before it did not resemble “the common-law replevin action of six centuries ago.” 407 U.S. at 78-80, 92 S.Ct. at 1993-1994. In that respect, Supplemental Rule B differs from the procedure considered in Fuentes .

Pre-attachment notice and hearing could, as we have explained, defeat both of the purposes of the attachment — obtaining jurisdiction, and obtaining security.

For all of these reasons, we do not find Fuentes controlling here.

In Mitchell v. W. T. Grant Co., supra, the Court upheld Louisiana’s sequestration procedures, allowing prejudgment seizure of goods on behalf of the seller-creditor, without affording the buyer-debtor prior notice and opportunity to be heard. The Court emphasized that it had previously “unanimously approved prejudgment attachment liens effected by creditors without notice, hearing, or judicial order....,” 416 U.S. at 613, 94 S.Ct. at 1903, citing Coffin Bros. v. Bennett, 1928, 277 U.S. 29, 31 , 48 S.Ct. 422, 423 , 72 L.Ed. 768 ; Ownbey v. Morgan, 1921, 256 U.S. 94 , 41 S.Ct. 433 , 65 L.Ed.2d 837 ; McKay v. Mclnnes, 1929, 279 U.S. 820 , 49 S.Ct. 344 , 73 L.Ed.2d 975 . It also emphasized the danger that the defendant might *639 sell or otherwise dispose of the goods, 416 U.S. at 605, 94 S.Ct. at 1899, and that the property would diminish in value while it remains in the debtor’s possession. Id. at 608, 610, 94 S.Ct. at 1900, 1901. Fuentes was distinguished, 416 U.S. at 615-616, 94 S.Ct. at 1904. Mitchell also involved household goods, a refrigerator, range, stereo, and washing machine. The case is not directly in point here, but supports a conclusion that pre-attachment notice and hearing are not required in our ease.

In Calero-Toledo v. Pearson Yacht Leasing Co., supra, 416 U.S. 663 , 94 S.Ct. 2080 , 40 L.Ed.2d 452 , the Court again applied the “extraordinary situation” analysis of Snia-dach and Fuentes and upheld the summary seizure and subsequent forfeiture, initiated by government officials, of a yacht that was allegedly used in an illegal smuggling scheme.

Finally, in North Georgia Finishing, Inc. v. Di-Chem, Inc., supra, 419 U.S. 601 , 95 S.Ct. 719 , 42 L.Ed.2d 751 , the Court struck down a Georgia garnishment statute. Under the Georgia statute, a writ of garnishment was issuable by the court clerk after receipt of an affidavit of a creditor or his attorney. The affidavit had only to contain conclusory allegations, and the statute did not provide for an early post-garnishment hearing. The Court, relying on Fuentes , stated that

419 U.S. at 606 , 95 S.Ct. at 722.

We conclude that the foregoing decisions do not require that we hold Supplemental Rule B invalid because it does not provide for pre-attachment notice and hearing. To so hold would negate the two reasons why the “old process” now embodied in the rule was developed and is still needed.

b. Lack of judicial participation in issuance of the writ.

In Mitchell, supra, the Court, in upholding the Louisiana procedure, remarked that the Court had previously approved prejudgment attachment effected by creditors “without notice, hearing or judicial order,” 416 U.S. at 613, 94 S.Ct. at 1903. This is such a case.

In Mitchell , the Court relied, in part, on the fact that, under the Louisiana procedure, a judge passed upon the sufficiency of the verified petition or affidavit, 416 U.S. at 616, 94 S.Ct. at 1904. Supplemental Rule B does not contain such a requirement. Nevertheless, we do not think that this requires us to hold the Rule unconstitutional. The Rule does require a verified complaint and an accompanying affidavit stating that the defendant cannot be found within the district. Supplemental Rule E(2)(a) requires that the complaint state the “circumstances from which the claim arises with ... particularity.”

The affidavit can be by the plaintiff or his attorney, and upon information and belief. It could hardly be otherwise in an admiralty case. Our case is an example. Polar is a Liberian corporation with its office in New York, and the action was filed by counsel in Hawaii. The complaint is verified by counsel; the affidavit is by counsel. The verification states that none of Polar’s officers are within the district, and that the verification is based upon statements and records furnished by the plaintiff, its officers and agents. The affidavit states what the affiant did to determine whether any defendant was within the district. To require that a judge, rather than the clerk, scrutinize these documents, ex parte, would add little protection, if any, to the defendants, probably none. The probable product of such a ruling would be more legal boiler plate.

It is not accurate to argue that the verified complaint and affidavit are wholly con-clusory. The complaint has as an exhibit a copy of the charter, and points out the claimed violation by Sanko. The affidavit states what the attorney did to find Sanko in the district, checking all telephone listings in the district, and with the Depart *640 ment of Regulatory Agencies of the State of Hawaii, and finding no reference to San-ko. Sanko claims to be one of the largest shipping companies in the world. If it were “present” in Hawaii, it would be surprising if it did not have a telephone, and was not known to the state agency.

We do not think that either Mitchell, supra, or North Georgia Finishing, Inc., supra, is applicable here to invalidate the attachment. Both cases are progeny of Fuentes, supra, and in that case an exception to its holding was noted for cases such as this one, where a purpose of the procedure is to obtain jurisdiction, which the Court referred to as “clearly a most basic and important public interest.” 407 U.S. at 91, n.23, 92 S.Ct. at 1999, n.23. Moreover, as we have shown, the procedures of admiralty have a history and sanction of their own.

c. Lack of requirement that the plaintiff post a bond.

We do not think that the Fifth Amendment requires that a bond be posted before the writ issues. The suggestion is not a practical one. The writ in this case was served on a number of respondents who, the plaintiff thought, were likely to have property of, or owe money to, Sanko. Only one responded that it owed money to Sanko. None held property for Sanko. In most cases, absent some special circumstances, such as a conditional sale contract, a mortgage, or a lease, for example, the plaintiff will not know, though it may suspect, that a particular person or concern has property of, or owes money to, a defendant. Much less is the plaintiff likely to know the property’s value or the amount of the debt. How, then, is the amount of the bond to be fixed? Supplemental Rule E(2)(b) does permit the court to require a bond for costs and expenses. It does not provide for a pre-attachment bond, probably for the very good reason that, until the writ is served and a response is made, there is no way in which to fix the proper amount of the bond.

4. Post-attachment Proceeding.

a. Notice and hearing.

The Court has held that where no pre-at-tachment notice and hearing are afforded, an immediate and adequate post-attachment hearing is constitutionally mandated. See North Georgia Finishing, Inc., supra, 419 U.S. at 607 , 95 S.Ct. at 722, (Opinion of the Court); 419 U.S. at 612-13 , 95 S.Ct. at 725-26 (Powell, J., concurring) (“[t]he most compelling deficiency in the Georgia procedure is its failure to provide a prompt and adequate post-garnishment hearing”), 419 U.S. at 611 n.3, 95 S.Ct. at 725 n.3 (Powell, J., concurring) (“[t]he basic protection required for the debtor is the assurance of a prompt postgarnishment hearing before a judge”); Mitchell, supra, 416 U.S. at 618, 94 S.Ct. at 1905 ; (Opinion of the Court); 416 U.S. at 625, 94 S.Ct. at 1908 (Powell, J., concurring).

Supplemental Rule B does not expressly provide for a post-garnishment or post-attachment hearing that could result in vacating an attachment. The district courts, however, retain the power to make local rules consistent with the Supplemental Rules. See Notes of Advisory Committee to Supplemental Rule A.

Admiralty Rule 55 of the United States District Court for the District of Hawaii provides:

5D E. Benedict, Admiralty, 2705 (Knauth 7th rev. ed. 1979). The term “instanter” is usually understood to mean within twenty-four hours. Black’s Law Dictionary 939 (4th ed., 1968). And under Admiralty Rule 38 of the District of Hawaii, the court “shall be deemed always open for the purpose of making and directing all interlocu *641 tory motions, [and] orders.” Benedict, at 2705.

Providing an immediate post-attachment hearing for a determination of whether an attachment is based on a frivolous or clearly meritless claim, or has been effected despite the presence of the defendant in the district, is consistent with the language and purposes of Supplemental Rule B. Therefore, Supplemental Rule B, as supplemented by the local rules, generally provides a defendant in admiralty, in the District of Hawaii, with a prompt and adequate post-attachment hearing.

A prompt hearing, however, is only possible if the defendant is provided with prompt notice. Supplemental Rule B only expressly requires that notice be given to the defendant before a default judgment can be entered and the property sold to satisfy the plaintiffs claim. Affording post-attachment or garnishment notice, sufficient to provide the defendant an opportunity for an immediate hearing, is not, however, inconsistent with Supplemental Rule B.

The Advisory Committee on Supplemental Rules stated that notice to the defendant in an attachment and garnishment proceeding is not required by the principles of due process, “since it is assumed that the garnishee or custodian of the property attached will either notify the defendant or be deprived of the right to plead the judgment as a defense in an action against him by the defendant.” Advisory Committee Note on Supplemental Rule B(2), citing Harris v. Balk, 1905, 198 U.S. 215 , 25 S.Ct. 625 , 49 L.Ed. 1023 ; Pennoyer v. Neff, 1878, 95 U.S. 714 , 24 L.Ed. 565 . The Committee concluded, however, that

Id.

Here, Sanko received actual and reasonably prompt notice of the pendency of the proceedings. Polar filed its original complaint on March 13, 1979. By March 22, 1979, Sanko had notice of the instant action. The attachment was effected on April 4, 1979. Although local counsel had been retained by Sanko as of April 3, 1979, Sanko did not make a formal appearance until the filing of its motion to dismiss on May 11, 1979. Thus, it appears that Sanko received reasonably prompt and adequate notice but failed to utilize the most immediate post-garnishment remedy available.

We need not decide whether, in a case in which no notice was given to or received by the defendant, the attachment would be unconstitutional because Supplemental Rule B does not require an earlier notice.

b. Post-attachment release of property attached.

The Court has indicated that attachment and garnishment procedures should provide a defendant with the opportunity to obtain release of properly attached or garnished property, upon the posting of an adequate bond. See North Georgia Finishing, Inc., 419 U.S. at 612 , 95 S.Ct. at 725 (Powell, J., concurring); Mitchell, 416 U.S. at 607 , 94 S.Ct. at 1900 . Supplemental Rule E(5) provides for such a release upon the posting of a bond by the defendant.

Thus, the post-attachment procedural safeguards, mandated by Mitchell and North Georgia Finishing, Inc., have been met by Supplemental Rule B, the applicable *642 local rules, and the provision of actual notice in this case.

The Judgment dismissing the action, and the order of June 27, 1979, are reversed. The case is remanded to the district court for further proceedings consistent with this opinion.