Programmed Total Marine Services Pty Ltd v The Ship “Hako Fortress”

Programmed Total Marine Services Pty Ltd (PTMS) has brought an action against the ships Hako Fortress, Hako Majesty, Hako Victory and Hako Triumph, which are currently detained under arrest warrants issued by the Federal Court. The ships are owned by various entities, including the Hako Group, but the demise charterers, Hako Shipping, have possession and control of the ships. The dispute arises from PTMS' provision of manning services to the ships and a tripartite deed between PTMS, the demise charterer, and a third party, whereby the third party receives an assignment of debt upon payment to PTMS. The ships' owners and demise charterers have sought to set aside the writs and arrest warrants, arguing that PTMS does not have a maritime claim against them.

The court had to determine whether PTMS had a maritime claim against the demise charterer, whether the manning services were supplied to the vessels, whether the demise charterer had the necessary possession and control of the ships at the time of the arrests, whether the charter of one vessel was terminated by the shipowner, whether PTMS had a maritime lien pursuant to the Admiralty Act, and whether the debt was assigned to the third party by the operation of the deed and the Property Law Act. The court held that PTMS had a maritime claim against the demise charterer, as the manning services were supplied to the vessels, and the demise charterer had the necessary possession and control of the ships at the time of the arrests.

The court also found that the charter of one vessel was not terminated by the shipowner, and PTMS had a maritime lien pursuant to the Admiralty Act. The court held that the debt was not assigned to the third party by the operation of the deed and the Property Law Act, as PTMS' contractual obligation to pay the crew has no relevance to whether it may be subrogated to the crew's maritime lien. The court dismissed the interlocutory applications with costs, and the ships remain detained under the arrest warrants.