Convenience of forum favours seamen in employment dispute under Admiralty jurisdiction

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.

Background

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...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT