dissenting, in which HATCHETT and ANDERSON, Circuit Judges, join:
I concur in Judge Clark’s dissent. I write separately to accent a few points I consider particularly important.
The question that divides the in banc court involves only the right of appeal. Because the panel correctly decided the merits of the case the outcome is not affected. In addition, my views are not in any way critical of the government because of its removal of the aircraft from the Southern District of Florida. Because the judgment of forfeiture was neither superseded nor stayed, the government clearly had a right to remove the aircraft and dispose of it. Finally, my dissent in no way impinges on the activities of federal officials in their war against narcotics importation. I take issue solely with the majority’s elimination of the right of appeal.
The majority opinion is disturbing on three different levels. In an important respect it offends fundamental principles of fairness. It also represents a departure from common sense. Finally, it is analytically flawed. Although in some circumstances the law may require courts to depart from what seems to be fairness and common sense, such a departure in this case is unjustified and unsupported by the law of forfeiture and admiralty.
1.
The claimant-appellant was unable to supersede the forfeiture judgment because it *1578lacked the funds to do so. Had it been able to post a supersedeas bond, the appeal would have gone forward without jurisdictional question. Federal law and rules of procedure provide that a judgment may be appealed without any supersedeas bond. Here, however, the claimant is being deprived of that important right because of its impecunious state.
To my mind the egregiousness of the result is magnified because this is a forfeiture case — a penal proceeding wherein strict construction of authorizing statutes has been required almost as long as construction itself. As the Supreme Court stated in another era, when alcohol rather than narcotics was the target of law enforcement: “Forfeitures are not favored; they should be enforced only when within both letter and spirit of the law.” United States v. One 1936 Model Ford V-8 De Luxe Coach, 307 U.S. 219, 226, 59 S.Ct. 861, 865, 83 L.Ed. 1249 (1939). Forfeiture actions are unique in that they are the only proceedings where the government may confiscate private property on a mere showing of probable cause. For this court to eliminate the right of appeal, the most important safeguard against abuse, is indeed a drastic step.
I do not assert that such an unfair result is without parallel. I do urge, however, that deprivation of important, indeed fundamental, rights because of impecuniousness alone should rest on compelling imperatives and not on sophistical hair-splitting.
2.
The United States initiated this proceeding in the United States District Court for the Southern District of Florida and thereby invoked the jurisdiction of a court of the United States. The majority holds that the United States can thereafter take the forfeited chattel out of the district and thereby defeat the jurisdiction of a United States court because of the United States court’s inability to enforce a judgment against the United States.
It is not asking too much of courts to suggest that their decisions, whenever possible, should harmonize with ordinary common sense. With deference to my esteemed colleagues in the majority, their decision fails to do so.
3.
The majority’s analysis is flawed because the majority misreads binding precedent and misapplies principles of admiralty law in this forfeiture case. Because I believe we have had in personam jurisdiction over the United States from the instant the government invoked the jurisdiction of the federal courts to initiate the forfeiture proceedings, I dissent from the majority’s dismissal of this appeal.
As Judge Clark’s dissent points out, the majority’s reasoning that removal of the res from the district destroyed this court’s jurisdiction to hear claimant’s appeal is based on a withering legal fiction in admiralty law that personified the ship. The traditional approach conceived of the ship as “the offending thing,” which allowed actions directly against the ship. See G. Gilmore & C. Black, The Law of Admiralty 589-94 (2nd ed. 1975). The fiction of a ship’s personality began as a literary theme, and reached a height of popularity near the turn of the century. Id. at 616. The fiction has been criticized severely during the past thirty years.1 The Supreme Court has noted that it has been attacked as archaic, irrational, atavistic and an animistic survival from remote times. Continental Grain Co. v. The Barge FBL-585, 364 U.S. 19, 23, 80 S.Ct. 1470, 1473, 4 L.Ed.2d 1540 (1960).
The majority’s resort to this legal fiction as a principle of decision to resolve this appeal is disturbing enough. See G. Gilmore & C. Black, supra, at 616. But to utilize a defective legal fiction to essential*1579ly cut off any right of appeal for appellant is inexcusable. See supra Part 1.
As the doctrine of personification of the ship loses force, so should the rules which rest on it. G. Gilmore & C. Black, supra, at 804-05. Among the many such rules which courts have begun to jettison is the rule that the presence of the res within the jurisdiction of the court is an absolute prerequisite to the court’s jurisdiction. See Treasure Salvors, Inc. v. Unidentified Wrecked and Abandoned Sailing Vessel (Treasure Salvors I), 569 F.2d 330, 334 & n. 4 (5th Cir.1978); 7A J. Moore & A. Pelaez, Moore’s Federal Practice II E.05, at E-203, E-207 (3rd ed.1983); see also United States v. An Article of Drug, 725 F.2d 976, 982 (5th Cir.1984) (in recent years Fifth Circuit has allowed certain in rem actions to continue despite absence of the res)', cf. Trans-Asiatic Oil Ltd. v. Apex Oil Co., 804 F.2d 773, 779 (1st Cir.1986) (court’s jurisdiction in maritime attachment proceeding is not wholly circumscribed by the presence and amount of the attachment).
The majority compounds the problem by misapplying an already shaky admiralty rule to the facts of this case. The jurisdictional issue in this case involves the United States, not the claimant Leybda. The plaintiff United States, after initially invoking the jurisdiction of the federal courts and then removing the res from the district, now claims lack of subject matter jurisdiction in order to defeat claimant’s attempt to appeal to this court. This is the exact opposite of what usually occurs in in rem cases, where the defendant ship stealthily absconds from port and leaves the plaintiff with no res from which to collect. In the usual in rem case the issue then becomes whether the plaintiff may establish in personam jurisdiction of the owner of the res once the res has been removed from the district. See, e.g., Taylor v. Tracor Marine, Inc., 683 F.2d 1361, 1362 & n. 2 (11th Cir.1982), cert. denied, 460 U.S. 1012, 103 S.Ct. 1252, 75 L.Ed.2d 481 (1983); Treasure Salvors I, 569 F.2d at 333—35; Inland Credit Corp. v. M/T Bow Egret, 552 F.2d 1148, 1151-52 (5th Cir.1977). In this case the issue is whether the defendant may establish in personam jurisdiction over the instigator of the in rem action, the plaintiff.
The question almost answers itself. Because it is rare that the plaintiff commencing an action in rem turns around and contests the jurisdiction of the court, there is little authority directly on point. In Treasure Salvors I the United States intervened in an action for confirmation of title to the sunken wreck of a 17th Century Spanish vessel. The government also counterclaimed and asserted title to the wreck. The Fifth Circuit held that by intervening in the plaintiff’s in rem action and filing a counterclaim asserting a property right in the underwater res, the United States waived the requirement that the res be present in the territorial jurisdiction of the court. 569 F.2d at 335.
In this case the United States has done more than intervene in an existing in rem action. The United States instigated the action.2 Having submitted itself to the jurisdiction of the court, the government should not be allowed to escape “through its subsequent jurisdiction exceptions” to claimant’s appeal. Savas v. Maria Trading Corp., 285 F.2d 336, 341 (4th Cir.1960). Indeed in other cases the government has argued successfully that it has personal jurisdiction over the owner of the res even after the res has disappeared. See, e.g., United States v. Articles of Drug, 818 F.2d 569, 571 (7th Cir.1987).
The Fifth Circuit in Inland Credit Corp. faced an almost identical issue. In that case the plaintiff, having received the proceeds of the sale of defendant ship, argued that the court lacked jurisdiction to hear the appeal of two intervenors who were denied a share of the proceeds by the district court. The court rejected the plaintiff’s argument, noting that it amounted to the proposition that there can be no appeal *1580from a distribution order once the proceeds have been disbursed. 552 F.2d at 1151. The court explained that it had in 'person-am jurisdiction over the plaintiff because the plaintiff “by his voluntary act in demanding justice from the defendant, submitted himself to the jurisdiction of the court....” Id. at 1152 (quoting Adam v. Saenger, 303 U.S. 59, 67-68, 58 S.Ct. 454, 458, 82 L.Ed. 649 (1938)). The United States in this case similarly has submitted itself to the jurisdiction of the court by demanding justice from the defendant in this forfeiture action.3
The majority places particular emphasis on L.B. Harvey Marine, Inc. v. M/V “RIVER ARC”, 712 F.2d 458 (11th Cir.1983), and Taylor v. Tracor Marine, Inc., 683 F.2d 1361 (11th Cir.1982), cert. denied 460 U.S. 1012, 103 S.Ct. 1252, 75 L.Ed.2d 481 (1983), concluding that these cases “control the result in the case at bar.” In addition to the distinguishing features noted in Judge Clark’s dissent, I consider it particularly important that the cases relied on by the majority involved the converse of the issue in this case. In Harvey Marine the ship had left the jurisdiction and the plaintiff-appellant was trying to assert jurisdiction over the ship’s owners. See 712 F.2d at 458-59. In Taylor the res had been distributed and the plaintiff-appellant was trying to assert a similar jurisdictional claim. 683 F.2d at 1362.4 Neither case had anything to do with the court’s jurisdiction over the plaintiff. Thus these cases are distinguishable, if not wholly inapplicable.5
An admiralty court should not be hampered in its efforts to reach substantial justice by inexorable rules invoked by the parties. Mosher v. Tate, 182 F.2d 475, 479 (9th Cir.1950) (quoting The Minnetonka, 146 F. 509 (2nd Cir.1906)). Admiralty rules should not be construed in a hypertechnical manner to frustrate their adjudicative purpose. Trans-Asiatic Oil, 804 F.2d at 779. The admiralty cases in the Fifth and other circuits are characterized by an “interest in rendering justice rather than an automatistic reliance upon rigid legalisms....” Treasure Salvors I, 569 F.2d at 334.
The majority today violates these principles by resuscitating an anachronistic and conceptually flawed rule of admiralty, and applying it to a modem forfeiture action where it does not belong. I would take this in banc opportunity to rid this circuit of this dated jurisdictional jetsam, and hold that we have jurisdiction to hear this appeal. I therefore dissent.
. Since World War II the courts and commentators have been in comfortable agreement that the personification of the ship is and always has been merely a legal fiction, is not and never has been a principle of decision. Abandonment of the fiction would seem to have been a clear gain for legal thought.
G. Gilmore & C. Black, The Law of Admiralty 616 (2nd ed. 1975) (footnote omitted).
. The majority states that the government did not intervene in this case, it "merely brought a forfeiture action.” With due respect I think the majority has it backwards. I consider bringing an action just as jurisdictionally significant as intervening into an existing one, if not more so.
.The majority misreads the Inland Credit opinion, or at least does not read all of it. The majority reasons that because the plaintiff Inland Credit filed suit both in rem and in person-am, the court continued to have jurisdiction over the ship’s owner even after the res had been distributed. Therefore, the majority concludes, because the United States “never invoked in personam jurisdiction [over Leybda, the owner of the airplane] when it brought suit,” the court lost jurisdiction once the res was removed from the district.
The issue in this case, however, is not what kind of jurisdiction exists over the defendant owner of the res, but what kind of jurisdiction exists over the plaintiff United States. The sentence quoted by the majority from the Inland Credit opinion does not address this issue. A subsequent sentence does: ”[I]t is undeniable that Inland is subject to this Court’s in personam jurisdiction." 552 F.2d at 1152.
. It is actually unclear over what or whom the plaintiff in Taylor was trying assert jurisdiction. The court noted that jurisdiction might still lie had the case involved in personam claims over the ship owner. 683 F.2d at 1362 n. 2.
. In both Harvey Marine and Taylor the res was literally gone, its location either unknown or its existence terminated. In this case the government has the res and it is sitting in a facility in Missouri.