Grinevich v The Ship "Orlovka"

IN THE HIGH COURT OF NEW ZEALAND
AUCKLAND REGISTRY
ADMIRALTY IN REM

CIV 2003-404-3330

BETWEEN M I GRINEVICH
First Plaintiff

AND P A KRUTKO
Second Plaintiff

AND S M GRINEVICH
Third Plaintiff

AND THE SHIP ORLOVKA
First Defendant

AND THE SHIP OSHA
Second Defendant

AND THE SHIP OM
Third Defendant

Hearing: 4 August 2003

Appearances: Barbara Versfelt for the Plaintiffs
No appearance for the Defendants

Judgment: 4 August 2003

(ORAL) JUDGMENT OF CHAMBERS J

Lawyers: Wilson Harle, PO Box 4539, Auckland, for the Plaintiffs

[1] Mikhail Grinevich, Pavel Krutko, and Serguei Grinevich have brought an action in rem against the ships Orlovka, Osha, and Om. They have been employed in various positions with respect to these ships. They have not received their wages. In addition, Mikhail Grinevich has not been reimbursed for disbursements which he has incurred as master with respect to the vessels.

[2] The defendants to this action have failed to enter an appearance within the time fixed for appearing. More than 14 days have passed since the notice of proceeding was served. The plaintiffs have filed affidavits proving due service of the notice of proceeding and the statement of claim and affidavits verifying the facts on which the action is based. Accordingly, the requirements of r 790(3) have been fulfilled. The plaintiffs now seek judgment by default.

[3] Ms Versfelt has taken me through the facts of this matter. I am satisfied that the plaintiffs are entitled to judgment by default in the sums specified in the draft judgment dated 4 August 2003. I am also satisfied that the second plaintiff is entitled to the declaration that is sought. The second plaintiff was entitled to be repatriated under the terms of his contract of employment. He has not been repatriated. He cannot afford to pay for the air fare himself because of his employer's failure to pay his wages. Accordingly, he is entitled to damages arising from the employer's failure to honour its obligation to repatriate. The sum of $76.80 per day has been calculated on the amount payable under his contract, which in turn was based on the then minimum wage payable under New Zealand employment law.

[4] So far as costs are concerned, all three plaintiffs have sensibly used the same firm of solicitors. I am satisfied that this is a category 3 case for the purposes of the costs rules. The proceeding itself is extremely complicated, as most admiralty cases are. In addition, there was further complexity because the contracts of employment were governed by foreign law.

[5] Looking at the matter globally, I am prepared to allow for commencement and for preparing the affidavits necessary for judgment by default 16.1 days. That time period takes into account the fact that it would have been very complicated to obtain instructions in this matter, particularly given that much of the documentary material is in Russian and required translation. In addition, the second plaintiff does not speak English. As well, there was great complexity in calculating the disbursements in respect of which the first plaintiff is entitled to be reimbursed.

[6] In addition to 16.1 days for those matters, I allow:

a) Appearance at mentions hearing .2

b) Sealing order .2

c) Today's appearance .5

TOTAL 17 days x $1900 = $32,300

[7] At the plaintiffs' request, that total sum is allocated as follows:

a) First plaintiff $25,300

b) Second plaintiff $ 5,000

c) Third plaintiff $ 2,000

[8] In addition, I allow disbursements to each of the plaintiffs as set forth in the draft schedule:

a) First plaintiff $ 745.72

b) Second plaintiff $ 841.72

c) Third plaintiff $ 449.72