The incessant ballet of ships in our ports or their long voyages across the high seas often relies on a technical operation as common as it is decisive: towage. Whether it involves helping a sea giant dock safely or moving a floating structure over hundreds of miles, towage is an essential service. Behind the manoeuvre, however, lies a precise legal framework — the maritime towage contract. Understanding how this agreement is formed, its exact nature, and the commitments it creates for each party is fundamental for any actor in the maritime world. This article breaks down these aspects to shed light on your rights and duties. For a broader understanding of the stakes of maritime towage for professionals, see our dedicated article.

What is the maritime towage contract?

Before examining the details of the contract, one must clearly grasp what it is and distinguish it from a close but legally distinct concept: salvage assistance.

Definition and main types

Towage, in its essence, is a traction operation. A vessel equipped with its own motive power — the tug — provides the force needed to move another vessel or floating craft, known as the tow. It is this link, whether or not materialised by a physical tow line, that lies at the heart of the operation.

Two main types of maritime towage are generally distinguished:

  • Harbour towage: the assistance provided to vessels, often large ones, for their entry, departure or movement manoeuvres within the limits of a port. The towed vessel is generally seaworthy and retains its own manoeuvring capabilities, but the complexity or tight quarters require the intervention of one or several tugs to ensure the safety and precision of movements. Imagine the difficulty for a container ship several hundred metres long of slotting into a port basin without the help of these powerful auxiliaries.
  • Deep-sea (ocean) towage: this concerns movement at sea, sometimes over long distances. The tow may be a vessel needing to be moved (without necessarily being in distress) or, more frequently, a floating craft lacking autonomous propulsion: barges, pontoons, floating cranes, oil platforms, hulls of ships under construction, and so on. In such cases, the tug handles the entirety of the displacement.

The fundamental difference often lies in the state and role of the tow: active and manoeuvring (even if assisted) in the first case, passive and dependent in the second.

Do not confuse towage with maritime salvage assistance

Confusion often arises between towage and maritime salvage assistance (assistance maritime). Although the physical operation (pulling or pushing a vessel) may appear identical, the legal distinction is crucial and boils down to one word: peril.

Salvage assistance, in the legal sense, intervenes when a vessel or property is in danger. French law, for example, incorporates the notion of danger among the criteria for setting the salvor’s remuneration (see article L. 5132-4 of the Transport Code — Code des transports). Case law is consistent: no danger, no salvage — only a mere towage, even if the vessel was in difficulty (minor damage, breakdown without immediate risk).

Why is this distinction so important? It carries major consequences:

  • Nature of the contract: towage is a commutative contract (contrat commutatif): services and price are agreed in advance. Salvage, by contrast, is aléatoire (aleatory — its outcome is uncertain): the salvor’s remuneration depends on the success of the operation (the « no cure, no pay » principle) and is set afterwards based on numerous factors (value saved, efforts deployed, dangers averted, etc.).
  • Legal regime: the applicable rules, particularly as regards liability and remuneration, differ considerably.

In concrete terms, if you order a tug because your vessel has engine damage but runs no immediate danger (calm weather, unthreatening area), you conclude a towage contract, not a salvage agreement. The towage company will bill you the agreed price for its service, not a salvage reward.

The formation of the towage contract

Like any contract, the towage contract arises from a meeting of minds. Its characteristics and the ways in which it is concluded nevertheless vary.

The essential features of the contract

Several traits define the maritime towage contract:

  • A consensual contract: the agreement is formed by the simple exchange of consents, without any written form being strictly required, especially in harbour towage. A mere order for a tug and its acceptance suffice to bind the parties. The « towage slip » (bon de remorquage) signed after the manoeuvre often merely confirms an agreement that already existed.
  • A synallagmatic (reciprocal) contract: it creates mutual obligations — the tug commits to providing a traction service, while the tow commits to paying the price.
  • A commercial (or mixed) contract: since the towage company always acts in a professional capacity, the contract is commercial on its side. It will be commercial for both parties if the tow is likewise a maritime professional (shipowner, charterer of a merchant vessel). If the tow is a private individual (pleasure craft) or an entity for which towage is not part of its commercial activity (public works equipment), the contract will be mixed. This distinction has consequences, notably as to the jurisdiction of the competent courts.
  • An adhesion contract (often): particularly in harbour towage, the towed vessel generally does not negotiate the terms of the contract. It adheres to the general conditions proposed by the towage company, often standardised at national level (such as the APERMA conditions in France). Note, however, that the reform of French contract law (article 1171 of the Civil Code — Code civil) now allows a clause creating a significant imbalance in an adhesion contract to be deemed unwritten, which could potentially affect certain standard clauses if they were found abusive between professionals (although maritime case law has often upheld customary clauses).
  • A contract dominated by freedom of contract: this is a fundamental point. The French Supreme Court (Cour de cassation), in a major decision (Cour de cassation, full bench, 26 March 1999, navire Dragor Maersk), held that the statutory provisions on maritime towage (arising from the 1969 statute, now in the Transport Code) are supplétives (default rules — they apply only in the absence of contrary agreement). This means they apply only where the parties have not provided otherwise in their contract. Towage companies may therefore, and widely do, define their own rules, particularly as regards liability, through their general conditions.

How is the agreement concluded?

The methods of formation differ markedly:

  • In deep-sea towage: the operation is often specific and costly (moving a platform, a specialised barge, etc.) and is the subject of negotiations between the owner of the craft and the towage company. The terms (route, deadlines, price, liabilities, equipment required) are discussed and most often give rise to a detailed written contract. The absence of a written document could make it difficult to prove the agreed conditions, in particular where the towage company relies on its general conditions.
  • In harbour towage: the situation is far more standardised and rapid. The master of the vessel (or its shipping agent) contacts the local towage company to order the number of tugs required for entering or leaving the port. Often, it is the pilot boarding the vessel who confirms or adjusts this need with the master. This request alone suffices to form the contract, since the company is regarded as being in a permanent offer of service. The company’s general conditions (e.g. APERMA) are then deemed tacitly accepted by merchant vessels that regularly frequent the port. Caution is in order for pleasure craft or occasional users: case law sometimes requires proof that they had actual knowledge of and accepted the specific clauses (particularly those limiting liability) before the operation. A mere mention on an invoice handed over afterwards may be insufficient.

What is the legal nature of this contract?

Legally qualifying the towage contract is no simple matter. The statute provides no precise definition and legal scholars have debated the question: contract for the hire of services? Contract of carriage? Charterparty? Contract for works and services (contrat d’entreprise)? The answer carries practical consequences (limitation periods, maritime liens, liability regime, etc.).

In the absence of consensus and of any clear ruling from the Cour de cassation adopting a single qualification, analysis tends to distinguish according to the type of towage:

  • For harbour towage: qualification as a contrat d’entreprise (contract for works and services) appears most appropriate. The tug undertakes « to do something » (a service — assisting with the manoeuvre) for the tow, in exchange for a price. The cooperation required between the two vessels and the fact that the tow generally retains the direction of the manoeuvre remove this operation from the total control that characterises carriage.
  • For deep-sea towage: qualification as a contract of carriage has been rejected by the courts, in particular because the parties are often professionals of comparable standing and because the main object is the displacement of a « vessel » or floating craft, not of goods in the strict sense. The qualification that best fits seems to be that of a voyage charterparty (affrètement au voyage). The towage company makes available an armed and equipped vessel (the tug) to carry out a defined voyage (the displacement of the tow) in exchange for a price. This analysis also better explains the latitude afforded to freedom of contract, a feature of the charterparty regime.

The obligations of the towage company

The company providing the towage service assumes obligations both towards its client (the towed vessel) and, in the harbour context, towards the public authority.

Towards the towed vessel

The principal commitments are:

  • Providing a suitable tug in good condition: the vessel must be fit to perform the requested mission (sufficient power, functioning equipment). The company is answerable for the seaworthiness of its tug. Case law has already held a company liable where its tug was not suitable (Commercial Chamber, 6 June 2000, Navire Provençal 3). General conditions often reserve to the company the option of substituting one tug for another equivalent one.
  • Providing a competent crew: the master and crew of the tug must possess the qualifications and experience needed to execute the manoeuvres properly and safely. Fault on the part of the crew may engage the company’s liability (subject to liability clauses — see following article).
  • Providing the tow line: as a matter of principle, supplying the towing cable falls to the company in deep-sea towage. In harbour towage, traditionally the towed vessel’s own mooring lines are used, but if the company supplies its own line (sometimes necessary), it may bill this service as an additional charge.

Towards the public authority (in ports)

Harbour towage is often regarded as a service public industriel et commercial (industrial and commercial public service — SPIC) or an activity of general economic interest, essential to the safety and proper functioning of the port. This imposes additional obligations on the company, often specified in its authorisation or in port regulations:

  • Performing the public service mission: the company must be able to deliver the service for which it is authorised.
  • Providing information: it must communicate to the harbour master’s office and to users the conditions of operation (available resources, schedules, tariffs, changes, etc.).
  • Serving: it has an obligation to respond to any request for towage, within the limits of the availability of its resources. This obligation is strong: the Cour de cassation has held that a towage company remained liable for the consequences of a strike by its personnel vis-à-vis users deprived of the service, unless it could establish force majeure — which is very difficult (Commercial Chamber, 2 February 1993). The company must therefore take every possible measure to ensure the continuity of the service or to minimise the impact of an interruption.
  • Treating users equitably: no discrimination between users. The company must respect the movement priorities set by the harbour master’s office.
  • Ensuring safety: it may be requisitioned by the port authority to carry out watchkeeping, safety, rescue or anti-pollution missions.

The obligations of the towed vessel

The main duty of the towed vessel is of course to pay for the service, but not only that.

  • Paying the price: the price of the towage is either set by a tariff (often officially approved in harbour towage) or negotiated between the parties (in deep-sea towage or for special operations). Surcharges (waiting time, difficult conditions, etc.) may apply. In the absence of an indication to the contrary, it is the owner of the towed vessel who is liable for payment, even if the vessel is chartered and the charterparty placed these costs on the charterer (such internal clauses are not enforceable against the towage company).
  • Payment security: the towage company’s claim is not statutorily privileged (unlike that of the pilot). Can it exercise a right of retention over the towed vessel as long as it has not been paid? This is debatable. If the right of retention benefits the party whose claim arises from the contract obliging it to deliver the thing (article 2286 of the Civil Code — Code civil), the question is whether the tug « holds » the towed vessel. In harbour towage, where the tow retains its manoeuvrability, the answer is probably no. In deep-sea towage, it could depend on the qualification adopted (if carriage, yes; if charterparty, no). In practice, this right is rarely invoked or recognised.
  • Ensuring the vessel is ready: the towed vessel must be ready to receive the tow line and to participate in the manoeuvre if necessary. This may entail having on board a sufficient and competent crew to release or recover the lines and to execute the orders given (particularly in harbour towage).
  • Indemnifying damage for which it is liable: if an incident occurs and liability falls on the towed vessel (under the statutory or contractual rules — see following article), its shipowner must indemnify the losses suffered by the tug or by third parties.

The complexity of the maritime towage contract and the obligations it entails call for careful analysis. To secure your maritime operations, our firm is at your disposal to advise you.

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