Liability and maritime towing: who pays in the event of damage?

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A maritime towing operation, even a routine one, is never without risk. A sudden gust of wind, a wrong manoeuvre, material damage... and an incident can occur, sometimes causing considerable damage to the tug, the towed vessel, third parties or port facilities. The question inevitably arises: who is responsible? Who should bear the financial cost of such damage? The liability regime in maritime towing is complex, combining default legal rules and ubiquitous contractual clauses. Let's decipher this mechanism together to understand who pays the bill in the event of a problem.

When does the towing operation begin and end?

Even before determining who is responsible, you need to know during which 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.

The law is silent on this temporal delimitation. It is therefore case law, supplemented by usage and standard contracts, which has set the limits of the "contractual period":

• The start of operations : The towing contract and its liability regime do not begin as soon as the tug leaves the quay to join the vessel. The contractual period begins when the tug approaches in close proximity of the vessel to be towed, with the intention of passing or taking the tow. The courts consider that the necessary manoeuvres immediately preceding the taking of the tow are part of the operation (see for example T. com. Dunkerque, 26 March 1979, Brave ship Com. 14 Feb 1967). A simple approach, even once the contract has been concluded verbally, remains outside this specific contractual period.
• The end of operations : The operation does not necessarily end when the tow is released. According to the APERMA general conditions, which are often applied, the contractual period ends <<>>. As long as this condition is not met, even if the cable has been cast off, the rules of the contract may still apply if, for example, the berthing manoeuvre is not completely finished (Rennes, 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 is a system of extra-contractual liability) that apply, but rather the rules of liability set out in the towage contract itself.

The default legal regime: liability based on management

What does the law say if the contract doesn't provide for anything specific? The Transport Code (resulting from the Law of 3 January 1969) lays down a simple principle: liability lies with the person who directs the operation. The law makes a distinction depending on the context:

• Port towage : The law presumes that transactions 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 overview of the complex manoeuvre, knows the reactions of his own vessel, and is in the best position to coordinate the action of the tug(s) with his own propulsion and rudder. Direct consequence: in the absence of a clause to the contrary, damage occurring during port towage is at the expense of the towed vessel. The latter can only be exonerated by proving a specific fault on the part of the tug (article L. 5342-1 of the French Transport Code). The burden of proof therefore lies with the tug.
• Offshore towing : The situation is reversed. The towed vessel is often an inert craft or a vessel without an active crew. The law therefore presumes that operations take place under the direction of the tug's captain. Logically, any damage that occurs during the operation is at the tugboat's expense. He can only be exonerated by proving a fault on the part of the towed vessel (article L. 5342-4 of the Transport Code).

However, this legal regime is substitute. The parties may, by express written agreement, decide to reverse the direction of operations (entrust the direction to the tug in port, or to the towed vessel in deep sea). In this case, the default liability regime is also reversed (articles L. 5342-2 and L. 5342-5 of the French Transport Code). In practice, these conventional reversals of direction are rare.

Contractual practice: the APERMA clause and transfer of liability

While the legal rules seem balanced, the contractual realityThe situation is very different, especially in port towing. Historically, towing companies have sought to limit their exposure to the risks inherent in these delicate manoeuvres.

They have developed standard clauses, incorporated into their general terms and conditions, which largely depart from the legal regime. The best known in France is the one contained in the French general conditions for port towage (APERMA conditions)established by the Association Professionnelle des Entreprises de Remorquage Maritime.

What does Article IV of these conditions say (in its usual version)? It lays down a formidable legal fiction: <<>> The consequence is an almost total transfer of responsibility: <<>>.

To put it plainly: 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 which will have to compensate the damage (including damage suffered by the tug itself!).

The validity of such an unbalanced clause was debated for a long time. The courts were divided on whether the 1969 law was mandatory or suppletive. The Court of Cassation reached a final decision in the Assemblée Plénière case of Dragor Maersk (Cass. ass. plén., 26 March 1999, no. 97-17.136). It confirmed that the legal provisions on liability for towing are applicable to all types of vehicles. supplementary. Contractual freedom takes precedence. Consequently, the APERMA clause is valid and applies to relations between professionals (shipowners, towage companies).

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

Limits to the application of the APERMA clause

However, the towed vessel is not totally helpless. There are two main ways in which it can escape the application of this transfer of liability clause: the unenforceability of the clause and gross negligence on the part of the tug.

Enforceability of the clause

For the APERMA clause (or any other general condition) to apply, it must be opposable to the towed vessel. In other words, the towed vessel must have been aware of it or, at least, have been in a position to be aware of it. before or at the time the contract is concluded.

How do you prove this knowledge, especially in port towing where the contract is often verbal? The towing company can rely on several elements:

• Filing the general terms and conditions with the Chamber of Commerce and Industry, port authorities or shipping agents' unions.
• The systematic mention of these conditions on the back of towing vouchers or invoices (even if a mention posterior to the accident on an invoice may be insufficient if the contract has already been performed).
• Regular use of the port by ships belonging to the same owner: a regular user is presumed to be familiar with the port's usual conditions.
• Information given to the ship's agent, who acts as the shipowner's agent.

On the other hand, in the case of a yachtsman or a vessel making an exceptional visit to the port, it will be more difficult for the towing company to prove that the specific clause and its consequences were brought to the attention of and accepted by the person being towed prior to the operation. Simply paying the invoice after the event is not always enough to prove that this acceptance was made with full knowledge of the facts.

Gross negligence on the part of the towing company

This is the most important limitation. Even the APERMA clause makes explicit provision for this: it does not cover the gross fault of the towing company in its obligation to provide means.

What is gross negligence? Case law classically defines gross negligence as <<>> (Com. 17 déc. 1951). This is not a simple manoeuvring error by the crew (covered by the clause), but a fundamental breach by the company itself.

How can it be characterised in the case of towing? Case law (for example, Aix-en-Provence, 8 June 2001, Zeralda ship) has identified situations where gross negligence may be involved:

• Provide a tug that is clearly unseaworthy or totally unfit for the operation requested.
• Making available a crew whose qualifications are manifestly insufficient or unsuitable for the mission.
• Carrying out (or allowing its crew to carry out) a manoeuvre in such conditions that the company was necessarily aware of the inevitability and particular seriousness of the damage that would result, even though it had the option of not doing so.

Proving gross negligence is difficult. But if the towed party succeeds in doing so, the transfer of liability clause is set aside, and the towing company will bear the consequences of its gross negligence. In the absence of such proof, the towed party will be held liable under the APERMA clause.

Specific liability issues

In addition to the tug/towed situation, other questions of responsibility may arise.

Damage to third parties

What happens if thetowing operation causes damage to a third party (another vessel, a port facility, an injured person, pollution, etc.)? The third party victim can take direct action against the towing company in tort (article 1240 of the Civil Code).

However, towing contracts (particularly for ocean-going vessels, but also via the APERMA clause, which covers damage to third parties) often include provisions for recourse clauses. These clauses allow the towing company, if it is ordered to compensate a third party, to then turn around and make the towed vessel bear the final cost of this compensation, in accordance with the transfer of liability agreed between them.

Towing and "working together

A technical question arises: are the crew of the tug and that of the person being towed (if they are actively participating) carrying out "work in common"? Case law defines work in common as the situation where the employees of several companies work simultaneously in a common interest under a single direction (Crim. 11 Oct. 2011). Without a clause to the contrary, port towage (direction by the towed) could be considered to meet these criteria.

However, the APERMA clause, by stipulating that the crew of the tug becomes the "exclusive employees" of the towed vessel, seems to rule out this very qualification. There would no longer be "several companies", but a single management (that of the towed company) exercising control over its own employees and those placed at its disposal.

The main issue here concerns accidents at work. In the case of joint working, long-standing case law (Cass., ch. réun., 8 Jan. 1908) considers that the company running the operation is not a "third party" for the employees of the other company. Consequently, an employee who is the victim of an accident cannot bring an action for liability under ordinary law against the ordering company (he or she only receives lump-sum Social Security benefits). The result is similar whether the situation is described as one of joint employment or one of exclusive employees being made available: the owner of the towed vessel, who directs the operation or has the crew under his exclusive orders, enjoys relative immunity from ordinary law liability claims by the tugboat's injured employees.

Care of the injured seaman

As a direct consequence of the crew being made available, if a member of the tug's crew is injured or falls ill during and in connection with the operations, the costs of treatment and payment of wages during the period of incapacity (as provided for by the Transport Code for the benefit of seafarers) are to be borne by the owner of the vessel being towed, as the "occasional" employer or principal, unless fault on the part of the tug (in the sense of gross negligence or initial default) can be established.

Taking legal action: prescription and jurisdiction

If a dispute arises and legal action is contemplated :

• Prescription : Actions arising from the towing contract are time-barred by two years from the completion of operations (article L. 5342-6 of the French Transport Code). This is a relatively short period of time, which should be borne in mind.
• Jurisdiction :
  • If both parties are merchants (e.g. shipowner and towing company), the commercial court is responsible.
  • If one of the parties is not a trader (e.g. a towed yachtsman), the contract is mixed. The non-trading claimant can choose whether to bring proceedings before the Commercial Court or the Court of First Instance. The commercial claimant must take the non-commercial claimant to court. Please note: contracts (general terms and conditions) often contain a clause conferring jurisdiction on the commercial court, which is valid even in a mixed deed if it has been accepted by the non-trading party.
  • Territorially, the court with jurisdiction is generally that of the place of performance of the service, i.e. the place where the service is provided. port where the towing took place (in accordance with article 46 of the Code of Civil Procedure).

The financial stakes associated with liability in the event of a towing incident are high. A good understanding of the rules and contractual clauses is essential. Contact our practice to analyse your situation and protect your interests.

Sources

• Transport Code: in particular articles L. 5342-1 to L. 5342-6 (legal liability regime, statute of limitations).
• Civil Code: article 1240 (tort liability towards third parties).
• Social Security Code: Articles L. 451-1, L. 454-1 (accidents at work, action against third parties).
• Code of civil procedure: article 46 (territorial jurisdiction).
• Key case law :
  • Cass. ass. plén., 26 March 1999, no. 97-17.136 (Dragor Maersk vessel): validity of APERMA clauses, suppletive nature of the law.
  • Aix-en-Provence, 8 June 2001 (Zeralda ship): illustration of the criteria for gross negligence.
  • Cass. ch. réun. 8 Jan. 1908: principle of relative immunity in the event of joint employment.
• APERMA General Conditions: central document governing contractual practice in France.

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