Programmed Total Marine Services Pty Ltd v The Ships Hako Fortress, Hako Endeavour, Hako Excel and Hako Esteem (2013) FCAFC 21

This case confirms that for a claim to fall within the definition of a "general maritime claim" under section 4(3)(m) of the Australian Admiralty Act 1988 (Cth), the claim must be in relation to goods and services which are supplied to a ship. Further, the case confirms that maritime liens are a personal right, not transferable nor able to be revived after they are extinguished.

On 2 April 2012, a service provider, Programmed Total Marine Services Pty Ltd ("PTMS") sought arrest warrants for the Hako Fortress, Hako Endeavour, Hako Excel and Hako Esteem (the "Ships").  The Ships were arrested progressively during April 2012. Each writ claimed that PTMS was owed varying amounts (totalling approximately $1.2 million) in relation to the costs of providing to the relevant ship, goods and services in the form of a master and crew. PTMS asserted that each claim fell within the Admiralty Act 1988 (Cth).

The service issue

To satisfy the jurisdictional requirement of section 4(3)(m) of the Act, the service provided must be in respect of  goods, materials or services (including stevedoring and lighterage services) supplied or to be supplied to a ship for its operation or maintenance.  Whether the relevant goods, materials or services are, or are to be, supplied to a ship is critical.  There must be a direct connection between the ship and the actual or proposed supply. There is a distinction between a supply to a ship and supply to a shipowner.  In this case, the invoices specified which ship the services were provided to and as such, it came within the provision.

The test for what will come within the scope of the phrase "operation and maintenance" is - 'whatever is fit and proper for the service on which a vessel is engaged, whatever the owner of that vessel, as a prudent man would have ordered, if present at the time.'   This concept includes necessaries both for the voyage and the particular venture on which the ship was engaged.

The lien issue

The Court confirmed that a seaman’s lien for his wage is a personal right and that it cannot be transferred nor can it be revived once discharged. The only persons entitled to arrest a vessel in support of the maritime lien for unpaid wages are the master and crew themselves where they remain unpaid.

In this case, PTMS could not assert any right of subrogation under section 15(2)(c) as the maritime lien was extinguished when the crew were paid. Moreover, the Court held that even if that was incorrect, it would be unconscientious for PTMS as the principal debtor to recover its lien so as to enable it to exonerate itself from its own primary liability.  As such, there was no entitlement to arrest a vessel in these circumstances.