Beyond the seas: understanding river, land and air towing

If maritime towing, with its economic stakes and spectacular risks (for an overview of its key issues), is at the forefront of the legal scene (to find out more about its foundations and obligations), the act of towing one craft by another is not limited to oceans and ports. On our rivers and canals, on our roads and even in the air, towing operations take place every day. Although they share a similar purpose - to provide motive power - these other forms of towing obey their own rules and raise their own legal issues. This article provides an overview to help you better understand the specific features of river, land and air towing.

River towing: on inland waterways

France has an extensive network of inland waterways, managed for the most part by Voies navigables de France (VNF). These rivers and canals are used not only by independent barges, but also by pushed or pulled convoys requiring river towing services.

A specific regulatory framework

Unlike maritime towing, which is largely dominated by contractual freedom, river towing may be subject to more administrative supervision. VNF, as a public institution, can organise the use of the public river domain and sometimes reserve the towing activity for certain companies to ensure its efficiency (in accordance with the principles set out in article L. 4411-2 of the Transport Code). Special administrative requirements may therefore apply in addition to contractual rules. The legal distinction with maritime towing is made on the basis of the type of waterway and the nature of the vessels concerned, as already recognised in previous case law (Req. 4 Jan. 1898).

What is the legal nature of the contract?

As in maritime matters, the legal classification of a river towage contract is not always obvious and depends largely on the facts. The key question is who really controls the operation:

• If the towed craft (a barge) retains autonomy of manoeuvre, with its own personnel and rudder, and can influence the trajectory independently of the tug, the Cour de cassation has refused to see this as a contract of carriage (Civ. 12 March 1942). It is closer to a contract of enterprise or hire of service.
• On the other hand, if the tug (or the pusher, as pushing is very common on inland waterways) has complete control of the convoy - for example, an inert barge without its own crew or means of steering, or whose rudder is neutralised - then case law tends to qualify the operation as a contract of carriage (Com. 23 Jan. 1973). The tug/pusher is then considered to be transporting the towed/pushed vehicle from one point to another.

This classification has important consequences, particularly in terms of liability. The river carrier is subject to an obligation of result (presumption of liability in the event of damage), whereas the contractor is only subject to an obligation of means (liability for proven fault). The liability rules for towing, whether by river or sea, are complex: find out about the specific rules and financial issues involved in maritime towing.

Freedom of contract and liability

Despite the potential administrative framework, contractual freedom also plays a role in river towing. Companies often include clauses in their agreements to limit their liability. A frequent clause, particularly in Rhine navigation, stipulates that the company does not supply that the driving force and that the bargemen of the towed boats sail and drive their boats on their own responsibility. The company is then only responsible for the quality of its traction service (suitable equipment, power supplied), but not for the overall progress of the convoy.

In the absence of a clause or if one is disregarded, the tug or pusher will be held liable if its fault is proven (Com. 15 Nov. 1994). Concerning the goods transported on board of the towed vehicle, it is the carrier of these goods (the boatman) who remains liable to the shipper, in accordance with the rules of the contract for the carriage of goods (article L. 133-1 of the French Commercial Code). He could only discharge his liability to the towing company if the latter were considered to be a third party whose unforeseeable and irresistible act caused the damage, or if the transport contract itself had been transferred to the towing company, which is rare.

Finally, it should be noted that 1988 Strasbourg Convention on Limitation of Liability in Inland Navigation (CLNI)The French insurance scheme for inland waterway vessels, including tugs and pusher craft, allows owners to limit their financial liability in the event of an accident (except in the case of inexcusable fault), with ceilings calculated according to the type of vessel.

Land towing: breakdown recovery and road traction

On land, towing immediately brings to mind the recovery of broken-down vehicles. But it also involves towing semi-trailers. Here again, questions of qualification and responsibility arise.

Vehicle breakdown: transport or service?

The business of repairing and towing vehicles that have been involved in accidents or have broken down is explicitly excluded from the scope of the regulations governing the carriage of goods by road (decree no. 99-752 of 30 August 1999). It is therefore governed by ordinary contract and liability law.

The nature of the contract between the breakdown mechanic and the motorist depends, once again, on the control of the operation:

• If the vehicle being towed is empty, or if the driver is not involved in the steering, the breakdown mechanic will make the journey alone. The operation then becomes a contract of carriage of the vehicle (Rouen, 26 May 1977). The breakdown mechanic is bound by an obligation of result: he is liable for any damage to the vehicle during towing, unless he proves an extraneous cause (force majeure, act of a third party, or inherent defect in the vehicle being towed - Aix-en-Provence, 4 Jan. 1996).
• While the driver remains at the controls of the towed vehicle and retains an active role in steering (braking, following the trajectory), the operation is more of a "hands-on" operation. contract for hire of services or a contract for services (Civ. 1ère, 9 Apr. 1975). The breakdown mechanic "only" provides traction. He will only be held liable in the event of proven fault in the provision of this service.

Responsibilities involved in repairs

Qualification has direct implications for liability:

• If contract of carriage : Presumed liability of the breakdown mechanic.
• If service contract : Tow truck driver liability for proven fault. The driver of the towed vehicle, if he or she retains effective control, may be held liable in the event of an accident caused by poor manoeuvring on his or her part. Case law has even considered him to be a "driver" within the meaning of Law no. 85-677 of 5 July 1985 (known as the Badinter Law) on compensation for victims of road accidents, because he retains some control over the movements of his vehicle (Civ. 2e, 14 Jan. 1987).

One point of attention concerns damage to third parties by the towing assembly. For example, a tow rope, even if it is slack between two stationary vehicles, can constitute a dangerous obstacle if it is not signposted. If it causes a pedestrian to fall, it may be considered to have played an active role in the accident and to have been the instrument of the damage, giving rise to liability on the part of the keeper of the unit (often the recovery engineer or the driver of the towing vehicle - Civ. 2e, 28 Oct. 1975). Signalling the towing operation is therefore essential.

Specific case of semi-trailer towing

Another form of overland towing involves semi-trailers towed by "tractionnaires" (companies supplying the road tractor). Here too, the nature of the contract is decisive:

• Is it a contract of carriage of the semi-trailer (and any contents)? In this case, the haulier is liable in accordance with the rules of road transport (obligation of result, specific compensation limits).
• Is it a simple traction hire (provision of a tractor with driver)? In this case, the tractor operator's liability is that of a lessor or contractor (proven fault).

The distinction still depends on the circumstances: who organises the journey? Who assumes the risks associated with the goods? Who chooses the route? Case law examines on a case-by-case basis whether the traction agent is acting as a genuine carrier or merely as a supplier of means of traction (see for example Com. 21 June 1988; Com. 3 Jan. 1991).

Aerial towing: the example of gliders

Less frequent but still available, aerial towing mainly concerns the raising of gliders, which do not have their own engine for take-off and initial climb.

An obligation to achieve results in terms of altitude

The contract concluded between the flying club (providing the tow aircraft) and the glider pilot has a precise objective: to bring the glider to an altitude agreed in advance to enable it to begin its autonomous flight. Case law has held that the aeroclub is under a duty of care to the pilot. performance obligation in reaching this altitude. If he fails to bring the glider to the planned height, he is in breach of his contractual obligation and is liable, unless he can prove an extraneous cause (unforeseeable and insurmountable weather conditions, for example - Civ. 1ère, 14 March 1978).

A surprising legal qualification?

More surprisingly, in one case, the Cour de cassation qualified this air towage contract as a assistance agreementIn this case, the court ruled that the agreement could be made even if there was no danger to the person being assisted (Civ. 1ère, 21 Dec. 1976). This seems to be an isolated solution and is a clear departure from the fundamental distinction made in maritime law between towing (without danger) and assistance (with danger). It is possible that this qualification was adopted in a very specific context or that it does not reflect a general position on the nature of the aerial towing of gliders, which is more akin to a specific service aimed at providing the energy necessary to get the glider airborne. Prudence suggests that this is above all a contract for the provision of a service with an obligation to achieve the agreed objective (altitude).

Although less widely publicised, river, land and air towing raise specific legal issues. If you are faced with a dispute in one of these areas, our firm can provide you with its expertise. in transport and commercial law.

Sources

• Transport Code: in particular article L. 4411-2 (role of VNF).
• Commercial Code: in particular article L. 133-1 (liability of river freight carriers).
• Strasbourg Convention (CLNI) of 4 November 1988: limitation of liability in inland navigation.
• Law no. 85-677 of 5 July 1985 (known as the Badinter Law): compensation for victims of road traffic accidents (applicable to land-based towing).
• Decree no. 99-752 of 30 August 1999: exclusion of towing from road transport regulations.
• Key case law cited :
  • Fluvial: Civ. 12 March 1942; Com. 23 Jan. 1973; Com. 15 Nov. 1994.
  • Land: Rouen, 26 May 1977; Civ. 1ère, 9 Apr. 1975; Civ. 2e, 14 Jan. 1987; Aix-en-Provence, 4 Jan. 1996; Civ. 2e, 28 Oct. 1975; Com. 21 June 1988; Com. 3 Jan. 1991.
  • Air: Civ. 1st, 14 March 1978; Civ. 1st, 21 Dec. 1976.