A marine towing operation, however routine, is never without risk. A sudden gust of wind, a faulty manoeuvre, a mechanical failure – and an incident can occur, causing sometimes considerable damage to the tug, the towed vessel, or even third parties or port installations. The question then inevitably arises: who is liable? Who must bear the financial cost of these damages? The liability regime for marine towing is complex, combining default statutory rules and ever-present contractual clauses. Let us examine this mechanism to understand who pays the bill when something goes wrong.

When Does the Towing Operation Begin and End?

Before even determining who is liable, one must know during what period the specific rules of the towing contract apply. Damage occurring just before the start or just after the end of the operation will not fall under the same legal regime.

French law is silent on this temporal delimitation. It is therefore case law, supplemented by trade customs and standard contracts, that has fixed the boundaries of the « contractual period »:

  • The start of operations: The towing contract and its liability regime do not commence as soon as the tug leaves the quay to meet the vessel. The contractual period begins when the tug approaches in the immediate vicinity of the vessel to be towed, with the intention of passing or taking the tow line. Courts consider that the manoeuvres immediately preceding the taking of the tow line form part of the operation (see e.g. Commercial Court of Dunkirk, 26 March 1979, vessel Brave; Cass. com. 14 Feb. 1967). The simple approach voyage, even after verbal conclusion of the contract, remains outside this specific contractual period.
  • The end of operations: The operation does not necessarily end when the tow line is cast off. According to the APERMA General Conditions (frequently applied in France), the contractual period ends « as soon as the operation is completed and the tug has moved away from the towed vessel sufficiently to no longer be subject to its action and no longer be likely to collide with or be struck by it. » As long as this condition is not met, even if the cable has been cast off, the contractual rules may still apply if, for example, the berthing manoeuvre is not entirely completed (Rennes Court of Appeal, 4 Nov. 1974).

Important point: if a collision occurs between the tug and the towed vessel during this contractual period, it is not the specific rules of collision (which constitute a non-contractual liability regime) that apply, but rather the liability rules provided for by the towing contract itself.

The Default Statutory Regime: Liability Based on Direction

What does the law provide if the contract contains no specific provisions? The French Transport Code (Code des transports, derived from the Law of 3 January 1969) sets out a simple principle: liability rests with the party that directs the operation. The law then distinguishes according to context:

  • In harbour towing: The law presumes that operations are carried out under the direction of the master of the towed vessel. Why this presumption? Because the master of the towed vessel, from his bridge, has an overall view of the complex manoeuvre, knows how his own vessel reacts, and is best placed to coordinate the tug’s action with his own propulsion and rudder. The direct consequence: in the absence of a clause to the contrary, damage occurring during harbour towing is borne by the towed vessel. The latter can only be exonerated by proving a specific fault of the tug (Article L. 5342-1 of the Transport Code). The burden of proof therefore lies with the towed vessel.
  • In ocean towing (remorquage hauturier): The situation is reversed. The towed vessel is often an inert craft or a vessel with no active crew. The law therefore presumes that operations take place under the direction of the tug’s master. Logically, damage occurring during the operation is borne by the tug. It can only be exonerated by proving a fault of the towed vessel (Article L. 5342-4 of the Transport Code).

This statutory regime is, however, supplementary (suppletif). The parties may, by a written and express agreement, decide to reverse the direction of operations (entrusting direction to the tug in harbour towing, or to the towed vessel in ocean towing). In such a case, the default liability regime is also reversed (Articles L. 5342-2 and L. 5342-5 of the Transport Code). In practice, such contractual reversals of direction are rare.

Contractual Practice: The APERMA Clause and Transfer of Liability

While the statutory rules may appear balanced, the contractual reality, especially in harbour towing, is quite different. Towing companies have historically sought to limit their exposure to the risks inherent in these delicate manoeuvres.

They have developed standard clauses, incorporated into their general conditions, which substantially derogate from the statutory regime. The most well-known in France is found in the French General Conditions for Harbour Towing (APERMA Conditions), established by the Professional Association of Maritime Towing Companies (Association Professionnelle des Entreprises de Remorquage Maritime).

What does Article IV of these conditions (in its standard version) provide? It establishes a formidable legal fiction: « During the contractual period […], the master and crew of the tugs are, by express agreement, placed at the disposal of the contracting party [the towed vessel] and become its exclusive servants (preposes). The tugs are placed under its custody (garde). » The consequence is a near-total transfer of liability: « Consequently, the contracting party [the towed vessel] is entirely and exclusively liable for all damage of whatever nature […] to the tugs […], to the towed vessels […], to the cargo […], to personnel […] and to third parties, whether such damage is caused by a fortuitous event or force majeure, any accident whatsoever, an act or fault of the tug crews […], an insufficiency, a failure […] or a hidden defect of the tugs […], including the fault of the company, with the sole exception of its gross fault (faute lourde) in the performance of its obligation to provide means […]. »

In plain terms: even if the damage is caused by a fault of the tug’s personnel, it is the towed vessel that is contractually designated as liable and that must compensate for the loss (including damage suffered by the tug itself!).

The validity of such an unbalanced clause was long debated. Courts were divided on the mandatory or supplementary nature of the 1969 Act. The Cour de cassation definitively settled the matter in Plenary Assembly in the Dragor Maersk case (Cass. ass. plen., 26 March 1999, No. 97-17.136). It confirmed that the statutory provisions on liability in towing matters are supplementary. Freedom of contract prevails. Consequently, the APERMA clause is valid and applies in relationships between professionals (shipowners, towing companies).

This solution is justified by the specificities of maritime law, where freedom of contract is traditionally broad, and by the particular risks of harbour towing (hydrodynamic phenomena, proximity of obstacles, potentially disastrous consequences of the slightest error) which encourage towing companies to seek strong contractual protection.

Limits on the Application of the APERMA Clause

The towed vessel is not, however, entirely defenceless. Two main grounds may enable it to escape application of this liability transfer clause: the clause’s unenforceability and the tug company’s gross fault.

Enforceability of the Clause

For the APERMA clause (or any other general conditions) to apply, it must be enforceable (opposable) against the towed vessel. This means the latter must have been aware of it or, at the very least, must have been placed in a position to become aware of it before or at the time of conclusion of the contract.

How can this awareness be proven, particularly in harbour towing where the contract is often verbal? The towing company can rely on several elements:

  • Filing of the general conditions with the Chamber of Commerce and Industry, port authorities, or maritime agents’ unions.
  • Systematic mention of these conditions on the back of towing slips or invoices (although a mention subsequent to the accident on an invoice may be insufficient if the contract has already been performed).
  • Regular frequentation of the port by vessels of the same owner: a regular user is presumed to know the port’s customary conditions.
  • Information given to the vessel’s maritime agent, who acts as the shipowner’s mandatary.

Conversely, for a pleasure boater or a vessel calling at the port on an exceptional basis, the towing company will have greater difficulty proving that the specific clause and its consequences were brought to the towed vessel’s attention and accepted before the operation. The mere payment of the invoice after the fact does not always suffice to prove acceptance with full knowledge.

Gross Fault (Faute Lourde) of the Towing Company

This is the most important limitation. Even the APERMA clause expressly provides for it: it does not cover the gross fault (faute lourde) of the towing company in its obligation to provide means.

What constitutes gross fault? Case law classically defines it as « negligence of extreme gravity, bordering on wilful misconduct (dol), and demonstrating the inability of the debtor, master of his action, to perform the contractual mission he has accepted » (Cass. com. 17 Dec. 1951). It is not a simple manoeuvring error by the crew (which is covered by the clause), but a fundamental failing of the company itself.

How is it characterised in towing matters? Case law (e.g. Aix-en-Provence Court of Appeal, 8 June 2001, vessel Zeralda) has identified situations that may constitute gross fault:

  • Providing a tug in a state of manifest unseaworthiness or wholly unfit for the requested operation.
  • Providing a crew whose qualifications are manifestly insufficient or unsuited to the mission.
  • Carrying out (or allowing its crew to carry out) a manoeuvre in such conditions that the company was necessarily aware of the inevitable nature and particular gravity of the damage that would result, when it had the option of not proceeding.

Proving gross fault is difficult. But if the towed vessel succeeds, the liability transfer clause is set aside, and the towing company will bear the consequences of its serious failing. Failing such proof, it is the towed vessel that, under the APERMA clause, will be held liable.

Specific Liability Issues

Beyond the tug/towed vessel relationship, other liability questions may arise.

Damage Caused to Third Parties

What happens if the towing operation causes damage to a third party (another vessel, a port installation, an injured person, pollution…)? The third-party victim can bring a direct action against the towing company on the basis of tortious liability (Article 1240 of the French Civil Code).

However, towing contracts (particularly ocean towing contracts, but also through the APERMA clause which covers damage to third parties) often include recourse clauses. These clauses allow the towing company, if ordered to compensate a third party, to subsequently claim against the towed vessel to make it bear the final burden of that compensation, in accordance with the contractual transfer of liability agreed between them.

Towing and « Joint Work » (Travail en Commun)

A technical question arises: do the tug’s crew and the towed vessel’s crew (if actively participating) perform « joint work » (travail en commun)? Case law defines joint work as the situation where employees of several companies work simultaneously in a common interest under a single direction (Cass. crim. 11 Oct. 2011). Without a clause to the contrary, one might consider that harbour towing (directed by the towed vessel) meets these criteria.

However, the APERMA clause, by stipulating that the tug’s crew become the « exclusive servants » (preposes exclusifs) of the towed vessel, appears precisely to exclude this characterisation. There would no longer be « several companies, » but a single direction (that of the towed vessel) exercised over its own employees and those placed at its disposal.

The main issue of this characterisation concerns workplace accidents. In cases of joint work, older case law (Cass., ch. reun., 8 Jan. 1908) considers that the company directing the operation is not a « third party » for the other company’s employees. Consequently, an employee who is a victim of an accident cannot bring a common law liability action against the directing company (they only receive flat-rate social security benefits). Whether one adopts the joint work characterisation or that of exclusive servants placed at the disposal of the towed vessel, the result is similar: the shipowner of the towed vessel, who directs the operation or has the crew under its exclusive orders, benefits from relative immunity against common law liability actions by injured tug employees.

Medical Care for Injured Seafarers

As a direct consequence of the crew being placed at the disposal of the towed vessel: if a tug crew member is injured or falls ill during operations and in connection with them, the medical expenses and salary payments during incapacity (as provided by the Transport Code for the benefit of seafarers) are borne by the shipowner of the towed vessel, as « occasional employer » or directing party, unless a fault of the towing company (in the sense of gross fault or initial failing) can be established.

Legal Action: Limitation and Jurisdiction

If a dispute arises and legal proceedings are contemplated:

  • Limitation period: Claims arising from the towing contract are time-barred after two years from the completion of operations (Article L. 5342-6 of the Transport Code). This is a relatively short period that must be kept in mind.
  • Jurisdiction:
    • If both parties are merchants (e.g. shipowner and towing company), the Commercial Court (tribunal de commerce) has jurisdiction.
    • If one party is not a merchant (e.g. a private pleasure boater being towed), the contract is mixed. The non-merchant claimant may choose to sue before the Commercial Court or the Judicial Court (tribunal judiciaire, formerly TGI). The merchant claimant must sue the non-merchant before the Judicial Court. Note: contracts (general conditions) often contain jurisdiction clauses in favour of the Commercial Court, which are valid even in a mixed contract if accepted by the non-merchant party.
    • Territorially, the competent court is generally that of the place of performance of the service, i.e. the court of the port where the towing took place (in accordance with Article 46 of the French Code of Civil Procedure).

The financial stakes related to liability in the event of a towing incident are significant. A sound understanding of the rules and contractual clauses is essential. Contact our firm for an analysis of your situation and the protection of your interests.

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