A recent New Zealand High Court decision reinforces the
traditional position that Admiralty Courts have adopted a
benevolent and protective attitude towards seamen in relation to
wages claims. The claim against the vessel may proceed whether the
seaman is employed by the ship owner or another party, and Courts
are disinclined to refuse jurisdiction on the grounds another forum
is more suitable.
In Udovenko v The Ship: MV Pelican 8/11/10, Gendall J, HC
Nelson CIV 2009-442-514 the plaintiff
(Udovenko) brought a claim against the 'MV
Pelican' for wages, superannuation and damages which he
alleges were due to him by the charterers of the vessel. The
'MV Pelican' is registered in New Zealand and was
operated and is now owned by Van Oord Dredging and Marine
Contractors BV. That company is the parent company of the
charterers of the vessel, including Van Oord Australia Pty Limited,
the applicant and Udovenko's employer.
The subject of the decision is the charterer's
application for an order staying the proceeding. The application
was made on the basis that the New Zealand Court is not the forum
conveniens for the dispute and it would prejudice the
charterer's claim for the matter to be heard in New Zealand
for the following reasons:
The employment contract in dispute was an Australian contract
relating to services performed in Australia and governed by
The disputes procedure in the contract was Australian based.
The charterer intended to call numerous Australian-based
The Court first recorded the statutory basis for the Admiralty
jurisdiction, section 4(1)(o) of the Admiralty Act 1973 and noted
that if the charterer's stay was granted it would remove
Udovenko's ability to bring an Admiralty action in the
forum of his choice and, realistically, would bring an end to the
claim because of his financial inability to conduct the claim in
In deciding whether the stay should be granted, the Court
applied the forum conveniens principles set out in Spiliada
Maritime Corp v Consulex Ltd  AC 460 (HL).
Importantly, the Court specifically referred to the
seaman's maritime lien, noting that the lien originated to
protect seamen from the more powerful owners and charterers of the
ships upon which they served.
The Court noted that the disparity of bargaining power between
ship owners and seamen is a relevant consideration in this case
because of the obvious disparity in resources available to the
charterer and Udovenko.
The Court also noted that the seaman's lien for wages
arises by operation by law and not by contract, reinforcing the
position that a seaman will have a lien over a vessel even though
he or she is employed by a charterer of the ship.
The Court ultimately elected not to exercise its discretion to
grant a stay. The charterer did not convince the Court that
Australia was the more suitable jurisdiction for the interests of
The decision reinforces the traditional position that Admiralty
Courts have adopted a benevolent attitude towards seamen from the
earliest times and that a claim for wages is sustainable against
the vessel itself distinct from the employer. As an aside, Udovenko
was also a plaintiff in another key New Zealand decision
reinforcing the Court's attitude towards seamen in relation
to wages claims, Udovenko v Karelrybflot (High Court
Christchurch, AD 90/98, 24 May 1999, Young J).
DLA Phillips Fox is one of the largest legal firms in
Australasia and a member of DLA Piper Group, an alliance of
independent legal practices. It is a separate and distinct legal
entity. For more information visit
This publication is intended as a first point of reference and
should not be relied on as a substitute for professional advice.
Specialist legal advice should always be sought in relation to any
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