The maritime towage contract: formation, nature and obligations

The incessant ballet of ships in our ports or their long journeys on the high seas often rely on a technical operation that is as common as it is crucial: towing. Whether it's helping a giant of the seas dock safely or moving a floating structure hundreds of miles, towing 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 player in the maritime world. This article sets out to break down these aspects and clarify your rights and obligations. For a broader understanding of maritime towing issues for professionalsSee our dedicated article.

What is a marine towage contract?

Before examining the details of the contract, it is important to understand what it is and to distinguish it from a similar but legally different concept: assistance.

Definition and main types

Towing is essentially a towing operation. A vessel with its own motive power, the tug, provides the necessary power to move another floating vessel or craft, the towed vessel. It is this link, which may or may not take the form of a physical tow, that is at the heart of the operation.

There are two main types of maritime towage:

• Port towage : This is the assistance provided to vessels, often large ones, for their manoeuvres of entry, exit or movement within the limits of a port. The towed vessel is generally seaworthy and retains its own manoeuvring capabilities, but the complexity or small size of the area requires the intervention of one or more tugs to ensure safe and precise manoeuvres. Just imagine how difficult it would be for a container ship several hundred metres long to enter a harbour basin without the help of these powerful auxiliaries.
• Offshore towing : It concerns movement at sea, sometimes over long distances. The person being towed may be a vessel needing to be moved (without necessarily being in distress), or more frequently, a floating craft with no autonomous propulsion: barges, pontoons, floating cranes, oil platforms, hulls of ships under construction, etc. In this case, the tug is responsible for the entire movement.

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

Don't confuse towing with maritime assistance

There is often confusion between towing and maritime assistance. Although the physical operation (pulling or pushing a vessel) may seem identical, the legal difference is crucial and can be summed up in one word: the danger.

Assistance, in the legal sense, occurs when a vessel or property is at risk. French law, for example, includes the notion of danger in the criteria for determining the remuneration of the assistant (see article L. 5132-4 of the Transport Code). The case law is consistent: no danger, no assistance but simple towing, even if the vessel was in difficulty (minor damage, breakdown without immediate risk).

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

• Type of contract : towing is a contract commutative The services and price are agreed in advance. Assistance, on the other hand, is random the assistant's remuneration depends on the success of the operation ("no cure, no pay" in principle) and is set after the event on the basis of numerous factors (value saved, effort, dangers avoided, etc.).
• Legal status : the applicable rules, particularly in terms of liability and remuneration, differ considerably.

In practical terms, if you order a tug because your vessel has engine damage but is in no immediate danger (calm weather, area with no particular risk), you are entering into a towing contract, not an assistance contract. The towing company will charge you the agreed price for its service, not an assistance reward.

Formation of the towing contract

Like all contracts, towing contracts are based on an agreement between parties. However, its characteristics and the way in which it is entered into vary.

The essential features of the contract

A number of features define the maritime towage contract:

• A consensual contract : The agreement is formed by the simple exchange of consents, without the need for a written document, especially in port matters. Simply ordering and accepting a tug is enough to bind the parties. The "towage order" signed after the manoeuvre often confirms an existing agreement.
• A bilateral contract : It creates reciprocal obligations: the tug undertakes to provide a towing service, and the person being towed undertakes to pay the price.
• A commercial (or mixed) contract: As the towing company always acts in a professional capacity, the contract is commercial on its side. It will be commercial for both parties if the person being towed is also a maritime professional (shipowner, charterer of a commercial vessel). If the person being towed is a private individual (pleasure boat) or an entity whose business is not commercial (public works machinery), the contract will be mixed. This distinction has implications, particularly for the jurisdiction of the courts.
• A membership contract (often) : Particularly in the case of port towage, the towed vessel generally does not negotiate the terms of the contract. It adheres to the general conditions proposed by the towing company, which are often standardised at national level (such as the APERMA conditions in France). However, the reform of contract law (article 1171 of the Civil Code) means that a clause creating a significant imbalance in a contract of adhesion can now be deemed unwritten, which could potentially affect certain standard clauses if they are deemed unfair between professionals (although maritime case law has often validated standard clauses).
• A contract dominated by freedom of contract : This is a fundamental point. In a major decision (Cass. ass. plén., 26 March 1999, Dragor Maersk vessel), affirmed that the legal provisions relating to maritime towing (stemming from the 1969 law, now in the Transport Code) are supplementary. This means that they only apply if the parties have not stipulated anything else in their contract. Towing companies can and do set their own rules, including in terms of liabilityvia their general terms and conditions.

How is the agreement reached?

The training methods differ considerably:

• Offshore towing : As the operation is often specific and costly (moving a platform, a special barge, etc.), it is the subject of negotiations between the owner of the vehicle and the towing company. The conditions (route, timescales, price, responsibilities, equipment required) are discussed and usually give rise to a detailed written contract. The absence of a written contract may make it difficult to prove the agreed terms, particularly if the towing company invokes its general terms and conditions.
• Port towage : The situation is much more standardised and quicker. The ship's captain (or his shipping agent) contacts the local towing company to order the number of tugs required to enter or leave the port. Often, it is the pilot on board who confirms or adjusts this requirement with the captain. This request is enough to form the contract, as the company is considered to be offering a permanent service. The company's general terms and conditions (e.g. APERMA) are then deemed tacitly accepted by commercial vessels that regularly use the port. Caution is called for in the case of pleasure boats or occasional users: case law sometimes requires proof to be provided that the latter were actually aware of and accepted the specific clauses (particularly those limiting liability) prior to the operation. A simple mention on an invoice issued after the event may not be sufficient.

What is the legal nature of this contract?

The legal definition of a towing contract is no easy task. The law does not provide a precise definition, and legal experts have debated whether it is a hire of services or a transport contract. Transport? Chartering? Business contract? The answer has practical implications (statute of limitations, liens, liability, etc.).

In the absence of a consensus and a clear position from the Cour de cassation on a single classification, the analysis tends to distinguish according to the type of towing:

• For port towing : The qualification of business contract seems the most appropriate. The tug undertakes to "do something" (provide a service: help with manoeuvring) for the towed party, in return for a price. The cooperation required between the two parties and the fact that the towed party generally retains control of the manoeuvre means that this operation is far removed from the total control that characterises transport.
• For deep-sea towing : The qualification of contract of carriage has been rejected by case law, notably because the parties are often professionals of comparable strength and the main object is the movement of a "ship" or floating craft, not goods in the strict sense. The classification that seems to correspond best is that ofvoyage charter. The towing company makes available an armed and equipped vessel (the tug) to carry out a specific voyage (the towed vessel), in return for a price. This analysis also better explains the importance of contractual freedom, which is characteristic of the chartering system.

The obligations of the towing company

The company providing the towage service has obligations both to its customer (the towed vessel) and, in the port context, to the public authority.

Vis-à-vis the towed vessel

The main commitments are :

• Provide a suitable tug in good condition: The vessel must be capable of carrying out the mission requested (sufficient power, functional equipment). The company is responsible for the seaworthiness of its tug. Case law has already held a company liable if its tugboat was unsuitable (Com. 6 June 2000, Navire Provençal 3). The general terms and conditions often allow the company to substitute a tug for another equivalent one.
• Provide a competent crew: The tug's captain and crew must have the necessary qualifications and experience to carry out the manoeuvres correctly and safely. If the crew is at fault, the company may be held liable (subject to the liability clauses, see next article).
• Supply the trailer : In principle, the company is responsible for supplying the towline for deep-sea tows. In port towing, it is traditionally the mooring lines of the vessel being towed that are used, but if the company provides its own trailer (which is sometimes necessary), it can charge extra for this service.

Vis-à-vis the public authorities (in ports)

Port towage is often considered to be a public industrial and commercial service (SPIC) or an activity of general economic interest, essential to the safety and smooth running of the port. This imposes additional obligations on the company, often specified in its licence or port regulations:

• Carrying out the public service mission : The company must be capable of providing the service for which it is approved.
• Inform : It must inform the harbour master's office and users of the operating conditions (resources available, timetables, fares, changes, etc.).
• To serve : It has an obligation to respond to any request for towing, within the limits of the availability of its resources. This obligation is a strong one: the Cour de cassation has ruled that a towing company remains liable for the consequences of a strike by its staff vis-à-vis users prevented from benefiting from the service, unless force majeure can be demonstrated, which is very difficult (Com. 2 Feb 1993). The company must therefore take all possible measures to ensure continuity of service or minimise the impact of an interruption.
• Treating people fairly : No discrimination between users. The company must respect the movement priorities set by the harbour master's office.
• Guaranteeing safety : It may be required by the port authority to carry out surveillance, safety, rescue or pollution response missions.

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 towing is either set by a tariff (often approved for port operations) or negotiated between the parties (for deep-sea operations or special operations). Supplements (waiting time, difficult conditions, etc.) may apply. In the absence of any 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 charter contract made the charterer responsible for these costs (these internal clauses are not enforceable against the towing company).
• Payment guarantees : The towing company's claim is not privileged by law (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 person whose claim results from the contract obliging him to deliver the thing (article 2286 of the Civil Code), the question is whether the tug "holds" the towed vessel. In port towing, where the towed vessel retains its manoeuvrability, the answer is probably negative. In deep-sea towing, the answer may depend on how it is classified (if it is a transport, yes; if it is a charter, no). In practice, this right is rarely invoked or recognised.
• Ensuring that your vessel is in good condition: The vessel being towed must be ready to receive the towline and take part in the manoeuvre if necessary. This may involve having sufficient and competent crew on board to cast off or recover the mooring lines, and to carry out the orders given (particularly in port).
• Compensate for damage for which it is liable: If an incident occurs and responsibility lies with the towed vessel (according to legal or contractual rules - see next article), its owner will have to compensate the damage suffered by the tug or by third parties.

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

Sources

• Transport Code: in particular articles L. 5132-4 (assistance), L. 5342-1 et seq (maritime towing). (We recommend that you check the latest version of these texts).
• Civil Code: in particular article 1171 (unfair terms in adhesion contracts), article 2286 (right of retention).
• Key case law :
  • Cass. ass. plén., 26 March 1999, no. 97-17.136 (Dragor Maersk vessel): suppletive nature of legal rules on towing liability.
  • Com. 2 Feb 1993, no. 91-11.850: liability of the towing company in the event of a strike (except force majeure).
• APERMA General Conditions: reference document for contractual practices in port towage in France.