FEDERAL COURT OF AUSTRALIA

ADMIRALTY – costs in respect of application by Master and crew for wages and repatriation – Master and crew partially unsuccessful on application – order for sale of vessel – whether Master and crew should repay to fund costs attributable to unsuccessful application – whether all costs of all parties should be taken from fund.

United States Trust Company of New York v Master and Crew of the Ship “Ionian Mariner” (1997) 149 ALR 200, cited

D R Thomas, Maritime Liens, (1980) par 303

PATRICK STEVEDORING NO 2 PTY LIMITED V THE SHIP TURAKINA

NG 114 OF 1998

                                                                        AND

WAITEMATA STEVEDORING SERVICES LTD V

RANGITATA, ECOMAR-SCHIFFARHTS GMBG & CO KG AND

THE MASTER AND CREW LATELY EMPLOYED UPON THE SHIP RANGITATA

NG 115 OF 1998

TAMBERLIN J

SYDNEY

17 AUGUST 1998

THE COURT ORDERS THAT:

In respect of costs in relation to the claim for wages and repatriation expenses by the Master and crew in respect of each ship.

1.         The Marshal arrange to repatriate such of the Master and crew of the MV “Turakina” and the MV “Rangitata” as are willing to be repatriated.

2.         The Marshal’s costs of such repatriation are to be the fees and expenses of the Marshal in relation to the arrest.

3.         The Marshal’s costs, with respect to the application of the Master and crew, the subject of the reasons for judgment of 5 May 1998, should be the fees and expenses of the Marshal in relation to the arrest on a solicitor-client basis.

4.         75% of the Plaintiff’s legal costs of the application of the Master and crew, the subject of the reasons for judgment of 5 May 1998, be part of the Plaintiff’s costs and expenses of arrest and be payable from the fund representing the proceeds of the sale of  the “Turakina” and the “Rangitata”.

5.         All of the Master and crews’ legal costs of the application, the subject of the reasons for judgment of 5 May 1998, be payable from the fund representing the proceeds of the sale of the “Turakina” and the “Rangitata”.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

REASONS FOR JUDGMENT

Costs – Application by Master and crew for repatriation expenses and wages in respect of the ships MV “Turakina” and MV “Rangitata”.

In this matter on 5 May 1998, I published my reasons for judgment but left the question of costs open for further submissions.

The application was made by the Master and crew of each of the above ships in order to obtain a direction from the Court that the Marshal should make a demand for wages; related entitlements, and repatriation expenses of the Master and crew, and should then pay such amounts to or for the benefit of the Master and crew.  The application was successful in relation to repatriation but failed in relation to the claim for wages and related entitlements.

Counsel for the other parties, other than the Master and crew, have submitted that in the event that there is a shortfall in the proceeds of sale, after meeting all substantiated claims, the Master and crew should repay to the fund, from moneys received by them the costs attributable to their unsuccessful claim for wages.  This would maximise the fund to meet the other claims.

I do not think this approach is appropriate in the present circumstances for two reasons.  The first is the benevolent approach which the Admiralty Court adopts when confronted with the predicament of seafarers whose ship is arrested in a foreign port.  Historically there has developed out of the solicitude of the Admiralty Court the recognition of a claim in the nature of a maritime lien for the seamen discharged in a foreign port: see Thomas, Maritime Liens, (1980) par 303; United States Trust Company of New York v Master and Crew of the Ship “Ionian Mariner” (1997) 149 ALR 200 at 223.   The second reason is the absence of directly relevant guidelines as to whether the wages should be directed to be paid by the Marshal.  In these circumstances, it could not be said that the application was unreasonable since it was made in an attempt to alleviate the immediate needs of the Master and crew and there was no authority on the question raised.

The primary submission for the Master and crew is that the full costs of all parties should come from the fund to arise upon sale of the ships. Both ships have been ordered to be sold by the Marshal and the sale is at an advanced stage.

Notwithstanding that the Master and crew have only been partially successful on their application, having regard to the predicament in which they were placed through no fault of their own, I consider that they should recover all of their costs on this application from the fund which will arise when the ships have been sold. The plaintiff has been successful on the claim concerning wages and related expenses and, therefore, having regard to the submissions made, in my view, the plaintiff should have 75% of its costs, to be paid from the fund.

The Master and crew submit that specific amounts of costs should be fixed by the Court in relation to the costs of this application.  However, there is no evidentiary basis in the material before me by which to determine any costs by way of specific amount and I therefore reject this submission.

It is agreed that, except for one matter; namely, the time taken on a number of unnecessary and unsuccessful arguments in the case of the “Rangitata”, the outcome of the costs applications in relation to both ships should be substantially the same.

In the case of the “Rangitata” it is submitted by various parties that the plaintiff should only receive 40% of its costs because a number of unnecessary arguments were mounted, which lacked substance and took up unnecessary time. Although I did not find these arguments attractive, I am not persuaded that any significant additional amount of time was taken up as a result of the course adopted in advancing them and, therefore, the percentages should not differ from the 75% figure applied in the case of the “Turakina”.

Apart from the orders set out below, I am not persuaded that any further or other order is necessary or appropriate.

The Court orders in relation to each of the ships:

1.         The Marshal arrange to repatriate such of the Master and crew of the MV “Turakina” and the MV “Rangitata” as are willing to be repatriated.

2.         The Marshal’s costs of such repatriation are to be the fees and expenses of the Marshal in relation to the arrest.

3.         The Marshal’s costs, with respect to the application of the Master and crew, the subject of the reasons for judgment of 5 May 1998, should be the fees and expenses of the Marshal in relation to the arrest on a solicitor-client basis.

4.         75% of the Plaintiff’s legal costs of the application of the Master and crew, the subject of the reasons for judgment of 5 May 1998, be part of the Plaintiff’s costs and expenses of arrest and be payable from the fund representing the proceeds of the sale of  the “Turakina” and the “Rangitata”.

5.         All of the Master and crews’ legal costs of the application, the subject of the reasons for judgment of 5 May 1998, be payable from the fund representing the proceeds of the sale of the “Turakina” and the “Rangitata”.

Associate:

Dated:              17 August 1998