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 Australian law.

The disputes procedure in the contract was Australian based.

The charterer intended to call numerous Australian-based witnesses.

The decision

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 Australia.

In deciding whether the stay should be granted, the Court applied the forum conveniens principles set out in Spiliada Maritime Corp v Consulex Ltd [1987] 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 all parties.


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).

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