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Towing. Behind this technical operation, often essential to the smooth running of maritime and port activities, lies a complex legal world. Whether it involves guiding a ship safely to its quay or moving an installation at sea, the contract governing this service is a source of many issues, particularly in terms of liability. For professionals in the sector - shipowners, charterers, port managers, insurers - a good understanding of the applicable rules is essential. This article provides a summary of the key legal aspects of towage, focusing on the maritime sector where the main concerns are concentrated.
The different facets of marine towing
Towing basically involves providing motive power to move a vessel or floating craft. At sea, there are two main contexts: the port towagewhich is a manoeuvring aid in often confined areas of ports, and the deep-sea towingThis involves moving often inert equipment at sea, sometimes over long distances.
It is important not to confuse towing withmaritime assistance. Although the physical action may be similar, assistance only comes into play when a vessel is in an emergency. danger. Towing, on the other hand, is a standard commercial service, carried out when there is no immediate danger. This distinction has major consequences for the nature of the contract and the method of payment.
The towing contract: a regulated agreement
Like any contract, a maritime towage contract is the result of an agreement between parties. In port matters, this agreement is often informal: a simple request from the vessel accepted by the towing company is sufficient. This generally implies tacit acceptance of the general terms and conditions proposed by the company, which are very often standardised at national level (in France, the APERMA conditions). In deep-sea towing, more formal negotiation and a written contract are more common.
One principle dominates this field: the freedom of contract. The Court of Cassation has clearly established (notably in the Dragor Maersk1999) that the legal rules concerning towing are only suppletive. This means that the parties can derogate from them by contract, which the general conditions do extensively, particularly on the sensitive issue of liability. As for its precise legal natureThis is the subject of some debate, but there is a tendency to see port towage as a contract of enterprise and deep-sea towage as a voyage charter.
Obligations: who has to do what?
The contract creates clear mutual obligations. L'towing company is primarily responsible for providing a suitable, seaworthy tug with a competent crew. In ports, it also has obligations linked to its public service remit: continuity of service (even in the event of a strike, except in cases of proven force majeure), equal treatment of users, information and participation in port safety.
Le towed vesselThe main obligation of the buyer is to pay the agreed price. He must also ensure that his own vessel is ready for the operation (staff on board if necessary for mooring manoeuvres, for example) and will pay compensation for any damage for which he is responsible.
Responsibility: a core concern
This is undoubtedly the most sensitive subject. Who is responsible if an accident occurs during the operation?
La law sets a default rule based on the direction of the manoeuvre:
- In ports, steering is presumed to be that of the towed vessel => liability of the towed vessel (unless the tug is proven to be at fault).
- In deep-sea conditions, the steering is presumed to be that of the tug => tug's liability (unless the towed party is proven to be at fault).
However, because of the freedom of contract, this legal regime is very often set aside in practice, especially in the port sector, by the standard contractual clauses (such as the APERMA clause). The main effect of these clauses is to transfer almost all liability to the towed vesselEven if the damage is the result of a fault on the part of the tug's crew. The tug crew is contractually considered to be under the exclusive command of the towed vessel during the operation.
There are limits to this quasi-systematic transfer of responsibility, but they are difficult to invoke:
- Unenforceability : The person being towed must have been aware (or could have been aware) of the clause for it to be applicable to them. This is easier to establish for a professional who is used to the port than for an occasional yachtsman.
- Gross negligence : The clause does not cover gross negligence on the part of the towing company (serious breach of its fundamental obligations, such as providing totally unsuitable equipment or an incompetent crew). However, proving gross negligence is difficult.
Consequently, in the majority of port towage incidents between professionals, it is the towed vessel that contractually bears the financial burden of the damage.
Overview of other tows
Towing is not limited to the sea. Specific rules apply to rivers (role of VNF, qualification sometimes of transport, possible limitation of liability via the CLNI agreement). On earthIn the case of towing, the question of classification (transport or service, depending on who is in charge) and the application of the Badinter law in the event of an accident arises. Towing aerial (gliders) raises questions about the nature of the flying club's obligation (result on altitude). Each of these areas has its own legal subtleties.
Navigating the legal aspects of towing requires a certain amount of expertise. For a personalised analysis of your situation or to secure your contracts, our team of specialist lawyers is at your disposal.
Frequently asked questions
What is the main difference between marine towing and marine assistance?
The essential difference is the presence or absence of danger: assistance is provided to save a vessel in danger, whereas towing is a commercial service provided without any notion of immediate danger.
Is towing still compulsory in French ports?
No, port towing is optional in principle, but the harbour master's office may impose it for safety reasons relating to the vessel or weather conditions.
How is a port towage contract usually drawn up?
It is usually formed verbally by a simple request from the vessel and acceptance by the company, implying tacit acceptance of the port's general towing conditions (APERMA type).
Who is legally in charge of the towing operation in default port?
By default, the law presumes that it is the master of the towed vessel who directs port towage operations.
What is the APERMA clause and what is its main effect?
The APERMA clause is a standard clause frequently found in French port towage contracts. Its main effect is to transfer liability for damage occurring during the operation to the towed vessel, even in the event of fault on the part of the tug's crew.
Does the APERMA clause apply if I haven't signed it?
Yes, for professionals who use the port on a regular basis, it is often considered to be a known and tacitly accepted practice, even without any prior formal signature. For non-professionals or occasional users, proof of knowledge and acceptance may be more debatable.
In what cases can the tug still be held liable despite the APERMA clause?
The tug may be held liable if the towed vessel proves gross negligence on the part of the towing company (serious failure to fulfil its essential obligations, such as providing manifestly unsuitable equipment).
What is the time limit for taking legal action following a marine towing incident?
Legal action arising from a maritime towage contract is time-barred two years after the end of operations.
Are there any specific rules for towing barges on rivers?
Yes, river towing may be subject to administrative regulations (VNF) and liability may be limited by the CLNI convention. The nature of the contract (transport or other) is also important.
Who is responsible if my car is damaged during a tow?
This depends on whether the breakdown mechanic was in complete control (contract of carriage, presumed liability of the breakdown mechanic) or whether you retained control (contract of service, liability for proven fault).
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