The Law of Tug and Tow and Offshore Contracts by Rainey, Simon -- Read -- Imperial Library of Trantor

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Cover Half Title Title Page Copyright Page Dedication Foreword Preface to the Third Edition Outline Table of Contents Table of Contents Table of Cases Table of Legislation, Rules and Conventions Table of Statutory Instruments Table of International Conventions, Rules and Legislation Table of Forms and Conditions Chapter 1—the Contract of Towage Part A. Preliminary considerations Defining towage Towage arises ex contractu Towage arises from a contract The relationship between towage and salvage Gratuitous towage The contract of towage is a contract for services Is the contract of towage one of bailment (or akin thereto)? The role of the standard form contract The UK standard conditions The BIMCO ocean towage and other offshore industry forms Common European towage forms The place of implied terms in towage and allied contracts Part B. The making of the contract Authority of master to contract to be towed On behalf of his owners On behalf of his vessel's cargo Authority of a master to take a vessel in tow The master of a tug The master of a vessel not a tug Pre-contractual disclosure: The Kingalock Part C. Other contractual matters The application of the Unfair Contract Terms Act 1977 The scope of application The provisions of the Act The Unfair Terms in Consumer Contracts Regulations 1999 No special rules of construction for towage contracts The effect of the general equitable jurisdiction of the Admiralty Court Chapter 2—the Implied Obligations of Tug and Tow Part A.The obligations of the tug The Supply of Goods and Services Act 1982 The Minnehaha and The Julia The principles summarised The impact of the Supply of Goods and Services Act 1982 on these principles Preparation for the towage Fitness of the tug for the towage service The obligation The nature of the obligation Contract for a named tug: special considerations How the considerations arise The cases The present position Performance of the towage service The general position The question of control Examples of identifying which vessel is in control If the tug is in control of the service Completion of the towage service Interruptions in the course of the towage Circumstances in which the towage can be abandoned Part B. The obligations of the tow The Julia Fitness of the tow for the towage service Proper seamanship during the towage service The general position The question of control Tow in control Tug in control Other aspects of the tow's obligations: the duty of co-operation Chapter 3—Standard Form Contracts: (I) The UK Standard Conditions for Towage and Other Services Part A. Introduction Part B. Commentary on the conditions Clause 1: introductory and definitions Paragraph (a) Paragraph (b)(i) to (iii) Paragraph (b)(iv): “whilst towing” “Whilst towing”: significance The commencement of “towing” The involvement of more than one tug The cesser of “towing” Paragraph (b)(v) to (vii) Clause 2: hirer's warranty of authority Clause 3: vicarious liability of tow and tug Generally The period during which the clause operates Effect as between tug and tow Effect as between tug and tow and third parties Clause 4: the exemption clause Period of application and scheme of the clause Paragraph 4(a) Paragraph 4(b) Paragraph 4(c) Personal fault of tug owner as to seaworthiness Tug not in a position of proximity or risk Paragraph 4(d) Paragraph 4(e) Clause 5: substitution of tug Clause 6: reservation of special rights Clause 7: further exemption clause Clause 8: non-suit clause Clause 9: jurisdiction clause Chapter 4—Standard Form Contracts: (II) The Bimco Forms “Towcon 2008” and “Towhire 2008” Part A. The “Towcon 2008” and “Towhire 2008” forms The genesis of the forms The 2008 revision of the forms The nature of the two forms Part B. The “Towcon 2008” form The structure and organisation of the form Part I of “Towcon 2008” Boxes 4 to 12 Boxes 13 to 21 Annex A (Vessel Specification) Boxes 22 to 25 Boxes 26 to 30 Boxes 33 to 35 Box 40 Part II of “Towcon” Commentary upon Part II of the form Clause 1: the tow Clause 2: basis of the contract Clause 3: price and conditions of payment The lump sum The earning of the lump sum and the anti-deduction clause Clause 4: the bunker price adjustment clause Clause 5: the cancelling date and the hirer's right to cancel Clause 6: free time and delay payments Clause 7: passage through canals and “Restricted Waters” Clause 8: ice clause Clause 9: additional charges and extra costs Clause 10: war risk escalation clause Clause 11: interest Clause 12: security Clause 13: place of departure/readiness for departure The place of departure The readiness of the tow for departure Certification Clause 14: place of destination Clause 15: riding crew Clause 16: towing gear and use of tow's gear Clause 17: permits and certification Clause 18: tow-worthiness of the tow Fitness of the tow Certificate of tow-worthiness Non-waiver clause Clause 19: the tug's seaworthiness Clause 20: substitution of tugs Clause 21: salvage Clause 22: termination by the hirer Clause 23: termination by the tug owner Clause 24: necessary deviation or slow steaming Generally Deviation from the original rate The liberties to deviate Impermissible deviations Clause 25: liabilities and mutual indemnities Generally The correct approach to construction of clause 25 Clause 25's use of contractual indemnities Injury to or death of those engaged in the towage: sub-clause (a) Loss of or damage to or caused by tug and tow: sub-clause (b) Scope of exclusion/exemption Heads of excluded loss and damage Other (financial) losses: sub-clause (c) The changes reflected in clause 25(c): (1) redefinition of heads of loss The changes reflected in clause 25(c): (2) specific reference to excluded causes (and negligence) Heads of excluded loss and damage The circumstances in which clause 25(c) applies The overall operation of clause 25(a) to (c) Statutory limitations: sub-clause (d) Clause 26: Himalaya clause Clause 27: “war” and other risks and difficulties Paragraph (a): the “defined terms” Paragraph (b): war and other risks affecting the passage Paragraphs (c) to (d): additional insurance for the tug and wages for crews Paragraph (e): the liberty to deviate Paragraph (f): blocking and trapping Paragraphs (g) and (h): consequential provisions Clause 28: lien Clause 29: warranty of authority Clauses 30 and 31: general provisions and time bar Clause 32: compliance with the ISPS and the United States MTSA legislation Clauses 33 to 35: dispute resolution; security for claims and contractual notices Clause 33: (1): the new dispute resolution provisions in paragraphs (a) to (c) and (e) Clause 33: (2): the new mediation provisions in paragraph (d) Clause 34: security for claims Clause 35: notices Part C. The “Towhire 2008” form The structure and organisation of the form Commentary on the different provisions in the “Towhire 2008” form Clause 3: price and payment clause Hire Mobilisation/demobilisation payment Anti-deduction clause Absence of delay payments and free time Clause 4: bunkers and allied matters Clause 11: place of departure Other clauses Chapter 5—Standard Form Contracts: (III) The Bimco “Supplytime 2005” Form Part A. The genesis of the form Part B. The “Supplytime 89” form A species of time charterparty The structure and organisation of the “Supplytime 2005” form Part C. Commentary on the form Preamble: contractual definitions Clause 1: period Clause 2: delivery and redelivery Clause 3: condition of vessel Description, class and seaworthiness as at delivery Seaworthiness and class during the service Clause 4: structural alternations to the vessel and extra equipment Clause 5: survey Clause 6: employment and area of operation Scope of vessel's employment Certificates The vessel's space Lay-up clause Clause 7: master and crew Ordinary features Paragraph (d): compliance with orders Clauses 8 and 9: “provide and pay for” clauses Clause 10: bunkers Clause 11: compliance with the ISPS and the United States MTSA legislation Clause 12: hire and payments Clause 13: suspension of hire Clause 14: liabilities “Knock-for-knock” Definitions and scope of application A more limited form of “knock-for-knock” Scope of exemption/indemnity Heads of excluded loss and damage “Consequential damages” The scope of the losses excluded The operation of the clause Hazardous and noxious substances Other matters Clause 15: pollution Clause 16: wreck removal Clause 17: insurance Clause 18: saving of life and salvage Liberty to deviate Liberty to perform salvage Salvage rendered to the charterer's property Clause 19: lien Clause 20: sublet and assignment Clause 21: substitute vessel Clause 22: war risks Clause 23: cancellation in light of war Clauses 24 and 25: ports and places affected by ice conditions and disease Ice Fever/epidemics Clauses 26 to 30 and 32: general or omnibus provisions Clause 31: early termination Charterer's right of termination Termination by either party “for cause” The procedure for termination for cause The events which give rise to the right to terminate Chapter 6—Standard form Contracts: (IV) The BIMCO “Heavycon 2007”; “Heavylifyvoy” and “Projectcon” Forms Part A. The background to the forms Part B. The “Heavycon 2007” form The structure of the form Part I and the “boxes” Annex “A” and the “Demarcation of Scope of Work” Commentary on the provisions of Part II Clause 1: definitions Clause 2: the contractual voyage The obligation to transport the cargo The obligation as to the seaworthiness of the vessel The obligation of despatch Clause 3: deviation; delays; part cargo Clause 4: loading and discharging responsibilities Generally Loading Discharging Other matters Clause 5: necessary permits and licences Clause 6: duties and taxes Clause 7: quarantine Clause 8: commencement of laydays and cancellation of the charter Clause 9: advance notices Clause 10: notice of readiness Clause 11: the condition of the cargo and the approval of the transportation Clause 12: freight Clause 13: free time and demurrage Clause 14: mobilisation and demobilisation Clause 15: canal transit Clause 16: bunker escalation Clause 18: dangerous cargo Clause 19: lien Clause 20: substitution Clause 21: termination Clause 22: liabilities and indemnities Clause 23: consequential damages Clause 24: pollution Clause 25: bill of lading or cargo receipt Clause 26: insurance Clause 27: cargo Himalaya clause Clause 32: limitation of liability Clause 34: agency Clause 35: brokerage Clause 37: double banking Part C. The “Heavyliftvoy” form The structure of the form Part I and the “boxes” Commentary on the provisions of Part II Definitions Clause 1: scope of voyage Clause 2: cargo requirements Requirements as to the cargo The carrier's right to an indemnity Defence of insufficiency of packing Clause 3: cargo description Clause 4: cargo discrepancy Clauses 9 and 10: the loading of the cargo and the “free-in” and “liner-in hook” options Clause 9: “free-in” Clause 10: “liner-in hook” Clauses 11, 12 and 13: provisions common to both “free-in” and “liner-in hook” options Clause 11: standard of seafastening Clauses 12 and 13: swell, port congestion and time waiting to berth Clauses 14 and 15: the discharging of the cargo and the “free-in” and “liner-in hook” options Clauses 16 and 17: provisions common to both “free-in” and “liner-in hook” options Clause 18: freight, demurrage and detention Clause 21: terminal charges Clause 23: part cargoes Clause 24: taxes, dues and charges Clause 25: bunker price adjustment Clause 26: deck cargo Clause 27: bills of lading Clause 30: merchant's option to terminate Clause 34: clause paramount Clause 39: BIMCO clause for special US Customs requirements Part D. The “Projectcon” form The structure of the form Part I and the “boxes” Commentary on the provisions of Part II Definitions The contractual voyage Lying aground The obligation as to the seaworthiness of the vessels The obligation of due despatch Clause 3: deviation and delays Clause 4: the parties'responsibilities for the ballasting of the barge for cargo operations Clause 5: the parties'responsibilities for loading and discharging Clause 7: taxes Clause 9: the period within which the barge is to be delivered and loaded, and the rights to cancel Clause 10: notice of readiness and other advance notices Clause 11: marine warranty surveyor and approval of cargo and vessels Clause 12: freight Clause 13: free time and delay payments Clause 21: “knock for knock” and mutual indemnities Clause 22: bills of lading, cargo notes and receipts Chapter 7—Towage and Salvage Part A. Preliminary considerations The historical relationship between towage and salvage The nature of salvage The 1989 Salvage Convention The essential criteria for salvage Subject of salvage Danger Voluntariness Success Part B. From towage service to salvage service The issues and questions arising The approach in The Minnehaha Its restatement in the later cases The test as expressed in the Salvage Conventions The first requirement: unforeseen circumstances putting tow in danger Unforeseen circumstances Circumstances creative of danger for the tow Danger to tow not of itself sufficient No need for danger to the tug The second requirement: service or services outside the scope of the contract The burden and standard of proof The effect of “conversion into salvage” upon the towage contract The relationship with salvage under the common forms of contract Towage contracts providing for “no salvage charges” Effects upon the rights of the tug crew The sub-contracting in of tugs in salvage services The effect of misconduct by the tug The early authorities The modern approach Part C. Contracts for “engaged services” The nature of “engaged services” Have “engaged services” survived the 1989 Salvage Convention? Part D. Salvage of a tug and tow Chapter 8—The Isu Standard form Contracts for The Provision of Tugs to Salvors For Use In Salvage: “Salvcon 2005” and “Salvhire 2005” Part A. Introduction Part B. The “Salvcon 2005” and “Salvhire 2005” forms The genesis of the forms The nature of the two forms Part C. The “Salvcon 2005” form The structure and organisation of the form Part I of the “Salvcon 2005” form Box 4 Boxes 3 and 5 Boxes 6 to 8 Box 9 Boxes 10 to 16 Box 17 Part II of the “Salvcon 2005” form Commentary on Part II of the form Clause 1: definitions Clause 2: nature of services to be provided by the owner Clause 3: price and conditions of payment Lump sum Delay payments and overpayments Termination for non- or late payment Clauses 4 and 5: free time and delay payments Clause 6: employment and area of operations Clause 7: master and crew Clause 8: the owner's obligations Owner's obligations Protection of the environment No claims for salvage Clause 9: hirer's representative Clause 10: permits Clause 11: towing gear and equipment Clause 12: seaworthiness of the vessel Clause 13: substitution of the vessel Clause 14: termination Clause 15: time for payment and interest Clause 16: extra costs Clauses 17 and 18: security and insurance Clause 19: liabilities Injury to or death of those involved in the service (clauses 19.1 and 19.2) Loss of or damage caused to or by vessels involved (clauses 19.3 and 19.4) Other (financial) losses and statutory limitations (clauses 19.5 and 19.6) Clauses 20–24 and 27: general provisions Clauses 25 and 26: law and arbitration procedure Part D. The “Salvhire 2005” form Chapter 9—The BIMCO/ISU Standard Form Contracts for Wreck Removal and Marine Services: “Wreckhire 2010”; “Wreckstage 2010” and “Wreckfixed 2010” Part A. Introduction Part B. The 2010 Standard “Wreck” forms Part C. The “Wreckhire 2010” form The structure of the form Part I and the “boxes” The Annexes to the form Commentary on the provisions of Part II Clause 1: definitions Clause 2: the services Clause 3: company representative Clause 4: change of work method and/or personnel, craft and equipment Clause 5: miscellaneous responsibilities of the parties Clause 6: permits Clause 7: delays Clause 8: suspension or termination Clause 9: delivery or disposal of the vessel by the contractor Clause 10: price and conditions of payment Clause 11: bonus for prompt completion by the contractor Clause 12: reduced daily rate of hire for late completion Clause 13: extra costs incurred in relation to the services Clause 14: extra costs incurred in disposal of the vessel Clause 15: security Clause 16: liabilities Clauses 17 to 19 and 22: standard provisions (Himalaya clause; lien; time for suit; notices) Clause 20: expert evaluation of alteration of rates of hire and losses of time under clauses 4 and 7 Clause 21: arbitration and mediation Clause 23: insurance Clause 24: duties as to avoidance of pollution and knock-for-knock for pollution liabilities Clause 25: rotation and replacement of craft, equipment and personnel Clause 26: general provisions Part D. The “Wreckstage 2010” form Clause 8: suspension or termination Clause 9: delivery or disposal Clause 10: price and conditions of payment Clause 11: extra costs Part E. The “Wreckfixed 2010” form General description of the form Differences with the provisions of “Wreckstage 2010” Chapter 10—Collisions Involving Tug and Tow Part A. Preliminary remarks The scope of the chapter Navigation and the Collision Regulations Navigation and navigational rules The role of the Collision Regulations The general scheme for apportioning liability in collisions between vessels Part B. Navigation by tug and tow The role of the towage contract The duties upon the tug The duties upon the tow Special aspects of the Collision Regulations Lights and shapes Sound signals Navigational rules Application to water-borne objects Tug and tow: how treated Part C. Collision between tug and tow The relevance of the contract Where the contract is silent Part D. Collisions during the towage which involve a third vessel The irrelevance of the contract The doctrine of control The old law The test in The Devonshire “Control” not necessarily decisive Liabilities between tug, tow and third party vessel Third party vessel not to blame Third party vessel also to blame Chapter 11—Towage and Limitation of Liability Part A. Limiting liability: General principles Historical background A question of policy The English approach Section 503 of the Merchant Shipping Act 1894 The Merchant Shipping Act 1979 (replaced by the Merchant Shipping Act 1995): the new regime The framework of the 1976 Convention and the Merchant Shipping Act 1995 Special questions arising in relation to tug and tow Part B. Application of the Limitation Convention to “ships” The relevant wording of the 1976 Convention The position in English law Part C. The aggregation of tug and tow for the purposes of the limitation fund The question of aggregation: the “flotilla issue” The cases before the Merchant Shipping Act 1958 The wording of the 1894 Act The cases The cases following the Merchant Shipping Act 1958 The wording of the 1894 Act as amended by the 1958 Act The decision in The Bramley Moore (1964) The decision in The Sir Joseph Rawlinson (1972) and later cases A summary of the law before the Merchant Shipping Act 1979 (now the Merchant Shipping Act 1995) A comparison: the Canadian and American cases The Merchant Shipping Act 1995 (replacing the Merchant Shipping Act 1979) and the 1976 Limitation Convention The relevant wording The current state of the law on aggregation The special problem of the flotilla's physical structure Part D. Limitation of claims “arising on any distinct occasion” The wording of the 1976 Convention The cases Part E. Application of Limitation Convention between tug and tow How the question arises The position under the 1976 Convention The decision in Smit v Mobius Chapter 12—Tug and Tow and General Average Part A. The special issues arising General average and the York-Antwerp Rules Questions specific to tug and tow Part B. Recovery of towage expenses in general average Summary of the position The leading cases The adjusters' rules of practice Part C. General average as between tug and tow The fundamental requirements for general average Practical importance for tug and tow The importance of the York-Antwerp Rules 1994 and 2004 The position prior to the 1994 Rules Commonality of adventure The basis of contribution between the respective interests The York-Antwerp Rules 1994/2004 and the new Rule B Commonality of maritime adventure Measure as to general average Tow-line slipped to save vessel(s) Disconnection an act of general average: continuation of common adventure Chapter 13—Admiralty Jurisdiction Historical background Present-day Admiralty jurisdiction Features of the jurisdiction in respect of towage Jurisdiction in rem No maritime lien “Towage in respect of a ship” “Claims in the nature of towage” Other available heads of jurisdiction Appendices Appendix 1 UK Standard Conditions for Towage and Other Services (revised 1986)

Appendix 2 “Towcon 2008” Appendix 3 “Towhire 2008” Appendix 4 “Supplytime 2005” Appendix 5 “Heavycon 2007” Appendix 6 “Heavyliftvoy” Appendix 7 “Projectcon” Appendix 8 “Heavyconbill 2007” Appendix 9 “Heavyconreceipt 2007” Appendix 10 “Heavyliftvoybill” Appendix 11 “Salvcon 2005” Appendix 12 “Salvhire 2005” Appendix 13 “Wreckhire 2010” Appendix 14 “Wreckstage 2010” Appendix 15 “Wreckfixed 2010” Appendix 16 Rule 24 of Merchant Shipping (Distress Signals and Prevention of Collisions) Regulations 1989 (SI 1989 No. 1798) Appendix 17 Netherlands Tug Owners Conditions 1951 Appendix 18 Scandinavian Tugowners Standard Conditions of the Year 1959 Revised 1974 and 1985 Appendix 19 Alexander G. Tsavliris Ltd v OIL Ltd (The Herdentor), judgment of the Hon. Mr Justice Clarke of 19 January 1996 (unreported)

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