FEDERAL COURT OF AUSTRALIA
ADMIRALTY - arrested vessel - responsibility of Marshal to Master and crew - whether Marshal should direct arresting party or its solicitor to pay post arrest wages of Master and crew - whether wages claimed by Master and crew, if paid by Marshal, are an expense of the Marshal in relation to the arrest - no assumption by Marshal of employer’s responsibility for wages of Master and crew - functions and responsibilities of the office of the Admiralty Marshal in relation to vessels under arrest - extent of the maritime lien in respect of unpaid wages - whether cost of repatriation of the Master and crew to their home port can be described as an expense of the Marshal in relation to the arrest - nexus required between expenses and duties of the Marshal in relation to the safe custody and preservation of an arrested vessel.
Admiralty Act 1988 (Cth)
Admiralty Rules rr 41, 47, 48, 49, 50, 75 and 78
Pritchards’ Digest of Admiralty and Maritime Law, 3rd edn 1887
F L Wiswall Jr, The Development of Admiralty Jurisdiction Practice Since 1800
“The Hoop”  4 C Rob 145, cited
Bayside Air Conditioning Pty Ltd v The Owners of the Ship “Cape Don” (unreported 15 May 1997), followed
Thomas, Maritime Liens, 1980
The Westport (No 4) (1968) 2 Lloyd’s Rep 559, followed
United States Trust Company of New York v Master and Crew of the Ship “Ionian Mariner” (1997) 149 ALR, followed
Jackson, Enforcement of Maritime Claims, 2nd edn
“The Mogileff”  7 Ll L Rep 130, cited
“The General Serret”  23 Ll L Rep 14, cited and applied
“The Berostar”  2 Lloyd’s Rep 403, cited
“The Vasilia”  1 Lloyd’s Rep 51, cited
Clausen v The Ship “Om Alqora” (1985) 38 SASR 494, followed
“The Leoborg” (No 2)  1 Lloyd’s Rep 380, followed
Smith v Federal Commissioner of Taxation (1987) 164 CLR 513, followed
PATRICK STEVEDORES NO 2 PTY LTD -v- TURAKINA
NG 114 OF 1998 AND
WAITEMATA STEVEDORING SERVICES LTD -v- RANGITATA, ECOMAR-SCHIFFARHTS & CO KG AND MASTER AND CREW LATELY EMPLOYED UPON THE SHIP RANGITATA
NG 115 OF 1998
5 MAY 1998
IN THE FEDERAL COURT OF AUSTRALIA
waitemata stevedoring services ltd
ecomar-schiffarhts GMBH & co kg
master and crew lately employed
upon the ship RANGITATA
REASONS FOR JUDGMENT
There are before me two applications by the Master and crew of two ships, which have been arrested by this Court and which remain presently under arrest. The first application is made in matter number NG 114/98, in which the plaintiff is Patrick Stevedores No 2 Pty Ltd (“Patricks”) and the defendant is the ship “Turakina”. The second application is brought in matter number NG 115/98, in which the plaintiff is Waitemata Stevedoring Services Ltd (“Waitemata”) and the defendants are the ship “Rangitata”, Ecomar-Schiffarhts GMBH & Co KG and the Master and crew lately employed upon the ship “Rangitata.”
When the vessels were arrested in February 1998, each vessel had on board a Master and a full sea-going crew.
The Master and crew on each vessel are understandably anxious to protect their entitlements in respect of the work undertaken by them in relation to the ships. As at the date of hearing they do not wish to compromise the strength of their position by leaving the ships. They, therefore, seek to ensure that satisfactory arrangements are made for their wages and other entitlements and also for their repatriation to New Zealand in due course. As at the date of hearing, no offer satisfactory to them for payment of wages and repatriation had been forthcoming.
The orders sought by the Master and crew are substantially the same in each proceeding. In the case of the “Turakina”, by way of example, the orders sought include directions from the Court that:
“The wages claimed by the Master and Crew for carrying out their duties in the preservation of the Turakina since the time of arrest on 19 February 1998 are to be paid as the Marshal’s cost of arrest, and are to be paid fortnightly or at such other times as may be agreed with the Marshal or ordered by the Court;
The Master and Crew are to be repatriated to their homes once they are discharged from the Turakina;
The cost of the repatriation of the Master and Crew are to be paid as the Marshal’s costs of arrest;
In the alternative to Orders 3 and 5, the wages are to be paid by the Owners ...”
Since the questions raised are substantially the same in both applications, I will consider the application made in respect of the “Turakina”. This will, for practical purposes, determine the questions raised with respect to the “Rangitata”.
The “Turakina” was arrested on 19 February 1998 on the application of Patricks. At the time of arrest there were a Master and eleven crew on board. The demise charterer was claimed to be South Pacific Shipping Limited of New Zealand (“SPS”), which is now in liquidation. I use the expression “claimed to be” because there are other proceedings on foot in which it is alleged that the demise charter had been terminated prior to arrest. On 19 February 1998, the liquidators of SPS purported to terminate, with immediate effect, the contracts of employment with the Master and crew. From 19 February onwards, the Master and crew have remained on board and have been involved in daily work on the vessel.
Upon arrest the Marshal appointed the Master as “ship’s keeper” pending determination of the proceedings and if necessary the sale of the vessel. The owners of the vessel have not paid the wages of the Master and crew since 19 February 1998.
The issues raised for determination are as follows:
· whether, in the circumstances of this case, the wages claim by the Master and crew, in respect of work on the vessels since arrest on 19 February 1998, are expenses of the Marshal in relation to the arrest;
· whether the Court should direct that the plaintiff in each proceeding pay the wages of Master and crew since the arrest;
· whether the Master and crew should be repatriated to their home port once they are discharged from the vessels; and
· whether the repatriation expenses are an expense of the Marshal in relation to the arrest.
The evidence concerning the position of the Master and crew on board the “Turakina” was given by Captain Scarrott, who is the Master of that vessel. He stated that from 19 February 1998 to 16 March 1998 there was cargo on board the vessel, which included reefer (refrigerated) containers requiring power for operation of the refrigeration units. He also said that power was required for the ordinary welfare of the ship’s company. He considers that the ship could be substantially de-manned and converted to “dead ship” status as soon as the cargo is unloaded and arrangements are made to repatriate the crew to New Zealand. He says that the crew have not been paid any wages since 18 February 1998. He attached to his affidavit, statements from members of the crew giving details as to the work undertaken by them since arrest.
In cross-examination he agreed that he was employed pursuant to a collective employment contract and that this was in force at the time of arrest. He understood that the crew were also employed under a collective employment contract. He confirmed that he and the crew have filed a caveat against release of the “Turakina” on the basis of their claims for wages and other entitlements. Captain Scarrott agreed that after the cargo was discharged on 16 March 1998, there was no reason for all membersof the crew to remain on the vessel except for the fact that they had claims for wages and repatriation. When asked if he would leave the vessel if paid the cost of repatriation, he agreed that he would if the payment also included his wages since arrest. He was unable to say whether all crew members took a similar view. He agreed that the work being carried out by the crew at the time of the hearing on 25 March 1998 was directed to ensure that the vessel was able to operate immediately on a sea-going voyage if so required and that the number of crew was sufficient to constitute a sea-going crew. He further agreed that the number of crew presently on board exceeded the number required whilst the vessel was in port.
In relation to the “Rangitata”, the Master, Captain Cooke, stated that since arrest the crew have performed duties under his supervision, directed at keeping the ship in a fully maintained, operational and sea-worthy condition. He referred to a number of statements as to their duties, which were attached to his affidavit. He also confirmed that, after discharge of the cargo, the ship could be reduced to “dead ship” status, which would require minimal crew presence. He stated that the current circumstances of the crew were unsatisfactory and that they had received no moneys by way of wages or entitlements since 19 February 1998. In cross-examination he agreed that the ship was currently well maintained and that since 27 February 1998, he and the crew had been aware that the engagement of the crew by SPS had been allegedly terminated. He said that he was aware that both he and the crew had a legal claim for a maritime lien over the ship for payment of outstanding wages and entitlements.
During questioning by Counsel for Waitemata, the following exchange took place:
“Q. Captain so far as you know, do you expect the crew will remain on board the vessel until some arrangements are made for their repatriation?
A. I do indeed, yes.
Q. And I take it that you have not instructed the crew to leave the vessel?
A. No I haven’t instructed them, no.
Q. Both yourself I take it and the crew share the view that you will remain on board indefinitely?
A. At the moment I cannot - I don’t think anybody can say indefinitely because we know that if the cargo for example is discharged which we have always expected it to be done over the past few weeks, and an agreement has been made that we would de-man the vessel after the cargo was out, so I cannot say indefinitely to you sir, no.
Q. I see, so that the factor that keeps the crew on board is that it may be required to assist in the discharge of the cargo?
A. That is only the one part, I think the actual much larger part to it is the case of remuneration for the work and being on board the ship and the repatriation costs which have not been given to us.
Q. So even if the cargo is discharged, there is the prospect that the crew may remain on board until such time as a suitable offer is made to pay their outstanding claims and repatriate them, correct?
A. My personal view would be that if the cargo is discharged from the ship, therefore the ship could be de-manned to a level suitable to whatever parties is necessary and again I would expect that the people de-manning the ship would be asked to pay the costs and the repatriation cost to us.” (Emphasis added)
The position is that no arrangements satisfactory to the crew on either vessel have been made up to the date of hearing and it was apparent that they were unlikely to leave the vessel until such arrangements were made both with respect to their repatriation costs and their wage entitlements.
The Admiralty Marshal
Since this matter involves a consideration of the role and responsibilities of the Marshal it is of assistance to consider the functions and responsibilities of the office, particularly with respect to vessels under arrest in determining the extent to which, if any, the Marshal should assume liability to meet crew wages and repatriation costs..
The office of Admiralty Marshal dates back to the earliest days of the Admiralty jurisdiction. In Pritchards’ Digest of Admiralty and Maritime Law, 3rd edn, 1887 at 1472, the office of Marshal is described as follows:
“The Marshal is the executive officer of the court, and performs duties analogous to those of the sheriff at common law. He is charged with the execution of all process of the court, except writs and subpoenas ... The Marshal was formerly remunerated by fees but by 3 & 4 Vict. c. 66, ss 5-18 (now repealed), a yearly salary was substituted for them, and he was prohibited from taking any fees for his own use. He attends the sittings of the court and carries the silver oar, as the emblem of the a maritime jurisdiction of the court.”
F L Wiswall Jr in his work The Development of Admiralty Jurisdiction Practice Since 1800, at 47-48, speaking of the Admiralty Marshal, says:
“In the nineteenth century, as today, the Marshal usually placed a member of his staff (known as a ‘ship-keeper’) aboard an arrested