What is Towage??
Towage is the act of having one ship or boat pull (tow) another. The puller is referred to as the tug, while the vessel pulled is referred to as the tow. Ships specialized for towing are called tugboats. Ships without motive power, which can only be moved by towing, are called barges.
As defined in English law, it is in essence a service by one vessel to another vessel for a fixed remuneration. The most common reason for requiring this service is the lack of its own motive power. Conventionally, towage is defined as “the employment of one vessel to expedite the voyage of another, when nothing more is required than the accelerating of her progress”. Apart from accelerating vessels, acquiring towage service is a common practice for towing barges, platform of drilling oil, floating ship yards, etc. Along with the development of sea carriage business and oil drilling business, many towage service providers are set up nowadays.
Towage is based upon the employment of one vessel by another which means a contract to employ that vessel. In most cases, contract will be in a standard form and part of this work will be taken up by a detailed consideration of the standard form contracts in most common use.
Towage contract characteristics
1. Tugs are not common carriers in respect of the vessels they tow.
Is defined as Common Carrier the one who runs the business of trade of carrying goods and is usually employed by shippers. Common carriers for reward are absolutely responsible for the goods they carry. However, no English or Commonwealth decision has held a tug owner liable as a common carrier in respect of the vessel towed. So, in case of any loss or damage to the tow, the burden of proving fault lies on the tugs owner.
2. Towage contracts are not contracts.
Ordinary principles of contract law are applied to towage contracts. The towage contracts are not contracts in which one party is under a fundamental duty to disclose all material facts within the parties’ knowledge and surrounding circumstances.
However, admirality court still retains a general equitable jurisdiction to declare invalid and to refuse to enforce certain towage agreements if it is considered to be seriously inequitable to one party or the other. This jurisdiction has been applied to some cases where there has been a lack of disclosure.
These principles were taken up and considered in somewhat unusual case of The Unique Mariner. The Unique Mariner ran aground off the coast of Indonesia and her owners cabled the master notifying him that a suitable tug was to be dispatched from Singapore. By chance, the defendants’ tug Salvaliant was in the area already and approached the other vessel. The master of the Unique Mariner, mistakenly believing that the Salvaliant was the tug sent by the owners, signed the Lloyd’s Standard Form of Salvage Agreement: “No Cure No Pay”. On learning that another tug (the one arranged by the owners) was on its way, he ordered the master and crew of the Salvaliant to stop work. The owners then sought to dispute the validity of Agreement. This is an example of the exercise by the Admiralty Court of its equitable power to treat as invalid, by the reason of serious unfairness to one party.
3. Authority of the master to enter into a contract to be towed.
The shipmaster is ordinarily authorised to enter into towage contracts which would bind his principals and towage service providers. However, there are some exceptional cases in the specific field of towage, Steamship Co. v. Anderson, It is held that a captain cannot bind its owners by every towage contract which he may think fit to make; it is binding upon them only when the surrounding circumstances are such to make it reasonable to be made, and also where its terms are reasonable.
4. Authority of the master to enter into a contract to tow.
The shipmaster of an ordinary ship carrying cargo or performing a charter must be very circumspect in committing his owners to the performance of a towage contract. The interests of cargo owners or other parties involved in the contract of affreightment must be considered. Whenever a tug towing a vessel under contract, the original voyage is interrupted which means it will amount to a breach of contract by the shipowner, unless it is allowed by the terms and condition of the bill of lading or charterparty. The principals of the shipmaster are entitled to either authorize his shipmaster to enter a towage contract or to limit his authority to certain extent.
Any claim in the nature of towage in respect of a ship is within the jurisdiction of the Admiralty Court. The plaintiff can take advantage of the special feature of Admiralty jurisdiction, it is the right to proceed in rem, which means the plaintiff can sue against the ship itself. However, actions in respect of towage are capable of being “true” actions in rem. A true action in rem is one which may be brought against the ship no matter who the owner is and these kinds of actions therefore survive a change of ownership after the cause of action has accrued, even though the new owner may have bought in good faith without notice of the claim. True actions in rem include cases in which there is a maritime lien on the ship for the amount claimed, but towage confers no such right.
What is Salvage??
When a ship suffers a casualty, or is otherwise in a position of peril, the master must decide as a matter of urgency and request for towage services, where it is contract it is towage and where LOF is accepted its known as salvage
Distinction between towage and salvage
1) The purpose of contract:
The purpose of towage contract is to offer towing service to a vessel by tugs, while the purpose of salvage is to save vessels which are in danger.
2) The tugged vessels are in different conditions
In towage contract, the tugged vessel should be in normal condition without certain extent of risk; while in salvaged, the salved vessel or other maritime property are usually under risk.
3) Remuneration/reward difference
In towage contract, the hirer’s reward of providing towage service depends mainly on the condition of towed vessels and the distance of towage. The towage fee and payment are usually mentioned in the contract in advance. However, in salvage, the reward of a salvor is based on “No Cure No Pay”, “reward less than the value of the salved ship or property” principals. In general, the reward of salvage is higher than the remuneration of towage.
4) Need for a contract
Although there is nothing to prevent one vessel gratuitously giving another a tow, the right of a tug or other towing vessel to payment always depends on contract whether express or implied. But in salvage, it does not totally depend on contract and may be rewarded even though the shipmaster of the salved ship has declined the offer of assistance.
5) No need for success
The need of success is a feature of salvage, but not of towage. It is a necessary element of a salvage claim because salvage awards can not exceed the value of the salved vessel or properties. The right to payment on towage will depend on the construction of the contract rather than the success of the venture.
6) Absence of lien
There is no maritime lien on the tow for the payment of the towage price fixed in the towage contract whereas a tugowner has a maritime lien over property salved.
Collision liabilities of tug and tow
Collision at sea which give rise to damage on the part of one or more of the vessels involved are actionable on proof of negligence. The problem of liability may arise due to the collision between tug, tow and a third vessel or in situation in which no third vessel is involved. The Inter-Governmental Maritime Consultative Organization (“IMCO”) has set up the Collision Regulations and Regulations For Preventing Collisions At Sea 1972. It is used to determine the negligence problem of ship collisions.