The Law of Towage

Catherine S. Panaguiton
UN International Maritime Law Institute

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 Towage
- the employment of one vessel to
expedite the voyage of another
when nothing more is required than the
accelerating of her progress
Dr. Lushington, The Princess Alice (1849) 3
W. Rob. 138 at p. 139:

(PURE TOWING WORK)

- As years passed, the definition has

expanded:
(ALLIED OPERATION)

*aside from towage of ships and other water-

borne objects such as oil and gas rigs
*tugs frequently render a wide range of
services, both in terms of handling and supply
to the offshore industries Tug

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Brief history

a. began with the development of steam

paddle tug in the 1820s and 1830s
b. first tug: upon River Thames: Lady
Dundas in 1832
c. in 1839: Temeraire- painting by Turner
d. soon after, steam tugs were assisting the
sailing ship in the rivers and ports of
England
e. As tugs grew powerful, they were
engaged to tow sailing ships on longer
voyages to hasten the arrival or departure of
the ships

The painting shows the ship that saved the Victory at the Battle of
Trafalgar being towed to a breaker's yard at Rotherhithe by a more
modern steam tug. 3
Nature of Towage

Towage arises ex contractu (what is talked about here)

-from the engagement or employment of the tug by another
vessel to:

*perform a particular service

*for a particular purpose

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Towage and Other related concepts

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Towage vs. Gratuitous Towage

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 Towage Gratuitous Towage
For consideration/payment “friendly tow”; towage “in gratis”:
towing vessel agrees to tow another
vessel in difficulties without payment
i.e. between small boats such as yachts,
sister ships

There IS a contract There is NO contract

If negligent/fault in performance of TORT
obligations, there might be a BREACH
OF CONTRACT
 

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 Why is it significant to distinguish Towage
vs. Gratuitous towage?
The West Bay III (Maurice Federation vs. Stewart [1969] Lloyd’s Rep. 158
 
Fisheries patrol vessel: tug/tower
Boom boat: towed vessel; suffered an engine failure
 
*Fisheries patrol vessel agreed to give boom boat a tow: the former did so gratuitously; boom boat: engine failure.
 
*during the towage, fisheries patrol vessel increased speed so as to give herself necessary steerage way, but this
capsized the boom boat, causing loss of life
 
*steerage way: a rate of motion sufficient to make a ship or boat respond to movements of the rudder (A rudder is
a primary control surface used to steer a ship, boat, submarine, hovercraft, aircraft)
 
ISSUE: Is there liability for tug?NO.
 
Answer:
  
Shepperd, J.
“In the case of gratuitous service, such as that of the patrol vessel’s master , there is NO liability at law where the
fault may be excused as an error of judgment (if x gratuitous, may be held liable)

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 Towage
Why is it significant to distinguish?
Standard of care: More strict than Gratuitous
Once there is a proven breach, pay
Gratuitous Towage
towing vessel still obliged to exercise
reasonable care in the performance of the tow
“when towage is rendered in gratis, the general
duty to take reasonable care governs the mutual
relations of the vessel.”
STANDARD OF REASONABLE CARE: will
depend on ALL the circumstances including:
-type of vessel
-nature of operation proposed
Lower standard of care (?); no liability where
fault may be excused as an error of judgment
*so its important to distinguish WON gratuitous
towage
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Towage and Bailment

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 Towage Bailment
-contract to tow The temporary placement of control
over,
or possession of Personal

Property by one person, the

bailor,into the hands of another, the
bailee, for a designated purpose upon
which the parties have agreed.

*liab. X contract, but by law

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 Bailment: illustration
Hotel guest gave ring to hotel clerk, to be delivered to jeweler, got lost
*

ISSUE: Can he (bailor) sue hotel as a bailee?

Note: No contract, but can sue based on laws on bailment

Minnesota court ruling: YES, hotel is bailee due to consent of hotel clerk.

• The hotel’s desk clerk consented to a bailment on behalf of his

employer
• The hotel’s desk clerk new that he had accepted control of a
valuable ring
• The hotel took possession of the ring as part of its regular
business services, and so generated good will and return
guests as a result of those services

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 Towage Towage akin to BAILMENT

CHARACTERISTICS
NOTE:
• Under a towage contract,

Tow- X obtain possession of tug

• in the UK, bailment rules apply on towage depending on the circumstances.
However, body of American authority/Canadian rejected the application of rules of bailment to a contract of
towage. (CONFLICTING)

Tug- X physical possession of tow; only a service
rendered to the tow
 
*species of contract of services
1)where tow is fully manned, and is being
towed/propelled/assisted by a tug (control;TOW)
Tug- YES put into physical possession of tow for the
period of the service
*analogous to a contract of bailment/contract of
carriage of goods
i.e. (TUG has control= possession)
1) tow is unmanned (e.g. dumb barge: The hull of a
barge, in tow of a tug, used for the carriage of cargo.)
2) tow: is an object w/c is being conveyed by sea
(eg. part of a rig)
3) tow is manned by a riding crew put on board by
tug (tug has phys possession, has control bec of crew
manning the tug)
A bailment is a form of contractual relationship, even
if no contract has been signed

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 Towage Towage akin to BAILMENT

NATURE OF OBLIGATION UPON A TUG OWNER

If tug owner is merely a provider of services and obliged
to exercise care and skill, if the tow sustains loss or
damage, the tow must show a breach of the tug’s
obligations of care and skill in order to recover(Palmer,
Bailment (2nd edn), pp. 49-53)
-Fault/neglect MUST be proven before liable
“The occurrence of an accident raises no presumption vs.
the tug and the burden is on the complaining party to
prove a lack of ordinary care.” (Minnehaha and Spaight
vs. Tedcastle)
-X a common carrier, only required that in the
performance of her duty she assumed reasonable skill
and care, and to exercise them in everything relating to
the work until it is accomplished.
If tug owner is regarded as a bailee, then he is liable for
loss of or damage to the tow unless he can exculpate
himself (TORT)
-Obligation to pay is founded in law and x contract
- Strict liability (follows in a bailor-bailee
relationship)/Stricter responsibility; subject to limited
exceptions such as ACT OF GOD
-when there is damage, fault is presumed
(tugs treated as common carriers of the vessels they tow-
highest possible degree of duty and care
(extraordinary care)

Harris vs. Anderson (1863) 14 C.B. The Court of Common Pleas rejected an argument that since a tow had grounded
during the towage, the tug was to be liable for the same until it could explain and excuse it. (this rule only applies in
a bailment type of towage, and X regular towage). The court held that the claim was bad: X allegation of
fault/neglect on the part of the tug

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 Towage akin to
Bailment

Increase
Degree of Towage- mere
Standard of towage
Care of TUG
required-
easier to claim Gratuitous Towage
as it goes up

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Quasi- Bailment

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Lukoil case- Kaliningradmorneft plc vs. Tata Ltd & Global Marine
Inc. [1999] 1 Lloyd’s Rep. 365
• Tug- Lukoil contracted on the “Towcon” form with Global (hirer for the towage of 2 vessels from Canada to India; owner of
vessels: Tata)
• Lukoil- exercised a lien over the vessels on mid-passage at Walvis Bay
-lien: a right to keep possession of property belonging to another person until a debt owed by that person is discharged.
- basis: TowCon clause 21: provides for a possessory lien for sums due under the contract
-Lukoil contended: it was the bailee of the tows (tug), and on bailment principles, it was entitled to exercise clause 21
possessory lien over tows
• Tata (owner)- x hire, it was Global who hired the vessels of Lukoil (contract party)
-says its is unaffected by the terms of the contract
- Global was the contract party, and it had x authority to contract in its behalf, notwithstanding Global’s warranty of such
authority (Clause 22) on “Towcon” form

CT Ruling (Toulson, J.): Lukoil was bailee of tow, “it took delivery and possession of vessels= sufficient to put in a position
of a bailee”
• Tows were vessels towed from Canada to India for scrapping
• Unmanned, no use of rudder or main engine
• Riding crews from tugs were put on board/available to board them in case of need; hulks under tow in the sole charge of Lukoil
• *Lukoil take delivery and possession of vessels, sufficient to put it in a position of bailee
• *But since Tata (owner) is x part of the towage contract, no direct bailment by Tata to Lukoil
ISSUE: was Lukoil allowed to deprive Tata of possession of the vessel based on TowCOn, that Tata was x a party to?
YES. *However, even if there is x bailment as such, a result akin to bailment would arise
- allow the tug owner (Lukoil) to rely on terms of the towage contract vs. owner of the tow (Tata); x party to contract, only Global
(hirer)
NOTE: In this unique scenario (quasi-bailment), the Lukoil case was silent as to circumstances that the tug will be liable for damage
to the tow
You analyse then on a case to case basis

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 Towage Towage akin to Bailment Towage akin to Quasi-
bailment
Owner and that entering into towage contract/ bailment Owner of vessel and that
arrangement are the SAME entering into contract are
DIFFERENT
(considering
circumstances of bailment
are met)

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Towage vs. Salvage

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 Towage
Same action: involves Towing by Tugs
- Ordinary towage”
“Mere towage service
Tug owners agree to provide services for the tow with tug
-tug owners in charge: hire the officer and crew, and supply
the tug
-for either:
a. an agreed period or defined service
b. to attain an agreed defined result
c. for an agreed or defined period of time
-in exchange for periodic or lump sum payments
In many of the towage contracts: terms are used w/c imply or
connote a lease of the tug to the tow
OR
the hire by the tow of the tug
i.e. tug owner is often described as “letting” the tug to the tow
tow- usually described as “hirer” of the tug
contract- commonly refer to the “delivery” to the tow of the
tug
completion of services of contract- “redelivery” by the tow of
the tug
*But notwithstanding the use of the terms, a towage contract
is a contract of service and NOT
- a lease
- a contract of hire of a tug
-possession of the tug passed to the tow under the contract
Salvage
The law of salvage encourages those on the sea to
help one another. Accordingly, a person who helps
a vessel that is in trouble is often entitled to a
reward for risking his own safety to help his
fellow seamen.
The law of salvage may apply if there is a vessel
in trouble or if a ship is already submerged in the
water. The person who discovers the troubled
vessel and helps to recover its passengers or
contents is known as the salvor. The salvor has the
responsibility to surrender the ship and its
contents to the vessel’s lawful owner as long as
the owner compensates the salvor for his or her
actions. If the owner refuses to compensate the
salvor then the salvor must surrender the ship or
its contents to the proper authorities and seek a
maritime lien against the owner.
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 Towage
- species of a CONTRACT
- you tow because you agreed to do it
-whereas, the motivating force of towage is to
tow the vessel to be paid for it; vessel is NOT
in peril or dire straits
Salvage
-founded in LAW
- you towed the vessel, bec. you wanted to
assist to save it from sea perils;
-you are NOT obligated under a contract to do
it; but you ARE obligated BY LAW to be paid
if you perform salvage work.
-Or even if there’s a contract; the objective is
to save vessel from peril and contract is just to
outline the terms of payment
- Note: although a form of salvage contract is
frequently entered into, the most common form
being Lloyd’s Open Form “LOF” 2000,
salvage DOES NOT depend upon the
conclusion of the contract
-the salvage contract/LOF is just activated
when the situation of salvage arises
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Thus, in the Hestia [1895] P. 193, Bruce J. stated at p. 199:

“But salvage claims DO NOT rest upon contract. Where property has
been salved from sea perils, and the claimants have effected the salvage,
or have contributed to the salvage, the law confers upon them the right to
be paid salvage reward out of the proceeds of the property which they
have saved or helped to save.

No doubt the parties may by contract determine the amount to be paid but
the right to salvage is in no way dependent upon the contract, and may
exist, and frequently does exist, in the absence of any express contract, or
of any circumstances to raise an implied contract.”

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Relationship between Towage and Salvage

Characteristics 

“But salvage claims do not rest upon contract. Where property has been salved from sea
perils, and the claimants have effected the salvage, or have contributed to the salvage, the
law confers upon them the right to be paid salvage reward out of the proceeds of the
property which they have saved or helped save.

No doubt the parties may by contract determine the amount to be paid but the right to
salvage is in no way dependent upon contract, and may exist, and frequently does exist, in
the absence of any express contract, or of any circumstances to raise an implied contract”
– The Hestia[1895] P. 193, Bruce J. at p. 199
 
Accordingly, where the tug is engaged by a vessel under a towage contract to perform
some towage operation that operation and the work which the tug has to effect to achieve,
it will not constitute salvage. It is only where the tug has to 1)perform some service
outside the contract and (2) circumstances of danger to the vessel that salvage will arise.
The touchstone is the scope and nature of the service contemplated by and provided for in
the contract.
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Salvage

Towage

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Relationship between Towage and Salvage

When Towage ends, salvage begins 

“ But if in the discharge of this task, by sudden violence of wind or waves, or

other accidents, the ship in tow is placed in danger, and the towing vessel incurs
risks and performs duties which were not within the scope of her original
engagement, she is entitled to additional remuneration for additional services, if
the ship be saved and may claim as salvor, instead of mere towage.” – in the
celebrated opinion of the Privy Council in The Minnehaha (1861) 15 Moo. P.C.
133, per Lord Kingsdown at pp. 152-154
The settled view is that while the tug is acting as salvor and extra-contractually,
the towage contract is “superseded” or “suspended”—see per Lord Kingsdown in
The Minnehaha, op cit. (towage and salvage CANNOT co-exist; different rules
apply for each; but as Sir Samuel Evans states, it is often difficult to discern the
point at which the service rendered by tug ceases to be a towage and becomes
salvage.
 

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Relationship between Towage and Salvage

When Towage ends, salvage begins 

 
“The right conclusion to draw from the authorities, I think, is that where salvage
services (which must be voluntary) supervene upon towage services (which are
under contract), the two kinds of services cannot co-exist during the same space
and time. There must be a moment when the towage service ceases and the
salvage service begins and, if the tug remains at her post of duty, there may come
a moment when the special and unexpected danger is over, and then the salvage
service would end, and the towage service would be resumed. These moments of
time may be difficult to fix, but have to be, and are fixed in practice. During the
intervening time, the towage contract, in so far as the actual work of towage is
concerned, is SUSPENDED. I prefer the word ‘suspended’ to other words which
have been used—such as ‘superseded, vacated, abandoned’ --- Sir Samuel Evans
P., put in The Leon Blum [1915] P. 90, at pp 101-102

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Standard Forms Used

Towage Salvage
Standard Forms Rule *see previous discussion.
*Since the mutual relations of tug and tow
are founded upon the existence of a contract
of towage between them, the definition of
their rights and obligations will be defined by
the terms of the contract which they have
agreed.

*There are standard form contracts- “contract

out” clauses of implied obligations of the
towage contract—viewed by Courts with
hostility; however, if standard forms were
particularly worded- Courts applied with
reluctance

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Salvage

Towage

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 Standard Forms Used
Towage Salvage

1)UK Standard Conditions for Towage and Other Services 1) Salvcon

 - Tugowner who wishes to hire out his tug to a
Salvor on a Lumpsum basis, may use this contract
-1986 revision (pay for a job)
-Good example of draconian standard form contract heavily favouring tug owners;
they are considered more favourable, for the tug, than basic “knock-for-knock” terms
Towhire and TowCon

2) Towhire and Towcon forms (which date from 1985, latest is 2008) 2) Salvhire
 
-Forms used in the UK and internationally have been produced under the auspices of
the Baltic and International Maritime Council (BIMCO) BIMCO has cooperated with the International
Salvage Union (ISU)
Towcon- The contract is designed for use in the ocean towage of a vessel from one (BIMCO-ISU forms)
place to another at a fixed rate. (pay for a specific job) BIMCO-ISU forms- also cover “mop-up”services
Towhire- Towhire contains the same basic form of knock-for-knock terms as in which tugs and offshore vessels specialise, such
Towcon, but the contract is designed for the hire of a tug for a period of time, rather as wreck removal
than for one specific job. (pay for period of time towage services are rendered)
 
Supplemented by the “Supplytime 89”
It is often used in the offshore industry as a contract under which to hire a tug, which
will then provide towage services. The contract contains knock-for-knock terms but
there is a risk if the tug, once hired, is used for towage operations involving third
party vessels. They may then bring claims directly against the tugowner, who would
be unable to rely on contractual defences or limits. (Arguably, Supplytime is not
technically a towage contract but a charterparty for the hire of a vessel.)

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Towage

30
Towage

31
Towage

32
Salvage

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Salvage

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NOTE: Standard Forms Rule in Towage
 
*if there IS standard contract, use standard contract
if there is standard contract, but it is silent on the matter, apply implied
terms and incidents of towage
 
*if there is NO standard contract, apply implied terms and incidents of
towage (LAW)

*Chapter 2: Implied terms and incidents of a towage, where no standard

form of contract have been used by parties

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But what if the contractual stipulations are
deemed unjust based on common human
experience?

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 Exercise of EQUITABLE JURISDICTION by the Courts
 
• General Rule: Contractual stipulations in towage contracts are valid
Except: When manifestly unfair and unjust, the Court will disregard
and decree what is fair and just.

• Instances wherein Courts may exercise Equitable Jurisdiction

1) Inability to make Full Pre- Contractual Disclosure
2) Fraud

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1) Inability to make Full Pre- Contractual Disclosure
WHAT must be disclosed?
A. All facts likely to affect the performance of the towage contract
B. which were within the special knowledge of either party

The Kingalock case (1854) 1 Spinks A. &E.263. (effect of inability to make FPCD, salvage vs towage
relationship)
A tug contracted to tow a vessel (mouth of river Thames in London for £40)
After the towage had commenced, the tug discovered that the tow had a) lost anchor and b) damaged her sails and
windlass (should be: salvage x towage )
Tug declared contract to end, but still towed her to London
Tug argument: it is a salvage, owed a lot more (£160)
Tow argument: it is a towage contract: only owes £40

Ct ruled: set aside towage contract, and upheld claim of salvage, tug received award of £160
“the omission to state facts a) lost anchor and b) damaged her sails and windlass== would only vitiate agreement if
with reasonable probability, it will affect the service about to be performed (concealment of material fact)
(in this case, the court ruled that it did, so contract was void ab initio)

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 Non material fact- not disclosed Material fact
(towage contract is still valid) (towage contract is X valid; it IS a salvage contract)

Vessel’s crew is ill (The Canova case) Vessel’s hold was 18 inches deep in water (in a leaky
and dangerous condition) (Dunsmuir vs. The Ship
Harold (1894)) 3 B.C.R.

The Unique Mariner [1978] 1 Lloyd’s Rep. 438.

A vessel had run aground. A salvage tug appeared.
Wrong identity (tow master thought it was sent by the
owners, but it was just there at the right place and the
right time; signed LOF (Lloyd’s standard form of
salvage agreement); when mistake was discovered, it
was ordered to be taken away (the tug)

Owners of tow: wanted contract to be set aside,

mistake/concealment of material fact- that tug was
there by chance and x pursuant to owners’ special
arrangements

Court ruled: contract is still valid

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What happens on FAILURE to disclose? (Conflicting decisions)

Kingalock case
a) contract is treated void ab initio
b)salvage contract would be substituted by the court, remuneration under
which the court would itself assess.
-compare-
The Unique Mariner case
 RULE: In entering into Towage contract, X special obligation on tug/tow to
make pre-contractual disclosure; contract of towage=is just like any other
contract, parties left to the remedy of Rescission or damages for
misrepresentations as in other contracts; X obligation to disclose material
facts

BUT court may intervene in the event of a clearly inequitable result and of
unfairness caused by a party’s non-disclosure at the time the contract was
made of matters which had a substantial bearing on the performance of the
engaged services under the contract
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• Instances wherein Courts may exercise
Equitable Jurisdiction

1) Inability to make Full Pre- Contractual

Disclosure
2) Fraud

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 Fraud
The court X uphold contract of Towage, exercise EJ:
(1) If either party has extorted the agreement by;
a) Taking advantage of the danger to which the property of the other
party is exposed
b) There is oppression or virtual compulsion arising from inequality in the
bargaining position of the 2 parties concerned
(2) If amount agreed upon in contract of towage=utterly inadequate or
grossly inexcessive in comparison to the real value of services
(fairness/unfairness: assessed AT THE TIME CONTRACT OF TOWAGE
IS MADE, position of parties at this time
and NOT take into consideration what happened afterwards
“the gross inadequacy or exorbitancy of the sum agreed, which
renders the agreement.. so inequitable to one side or the other that it
should not be allowed to stand”
(3) If towage contract: there is an “existence of collusion of one kind or
another”- i.e. bribing or colluding with the tow’s master to persuade him to
enter into a towage contract on his owner’s behalf
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The Making of A Towage Contract

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IA] Authority of MASTER to contract
to be towed (enter into contract) and
BIND owners
(actual and ostensible; implied actual
authority)
 
ON BEHALF OF OWNERS
Ratio
The ability and right to engage in 1)ordinary
and usual towage services in circumstances of
proper and reasonable necessity= incident of
master’s authority and his duty to his owners
to prosecute the voyage and to employ the
vessel safely and properly and in an ordinary
and reasonable fashion.
2) The auth to engage exceptional towage
services under master’s agency of necessity
In relation to towage contracts
1.Has authority to engage ordinary towage
services, which, objectively viewed, are
A)reasonably necessary for the safe and
proper operation of the vessel and for
her preservation from loss/damage
and B) contract has reasonable terms
*A and B must be proven
 (The Crusader and The Luna case)
Authority of master
-Necessity of engagement of the tug in
circumstances where a reasonable person
would regard the engagement as likely to be
Master’s inability to communicate with his
Owners
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 A)reasonably necessary for the safe and proper operation of the vessel and
for her preservation from loss/damage
and B) contract has reasonable terms
The Crusader (1907)
• a vessel had run aground and required tug assistance to get her off
• a ship has gotten stuck on ground, either by navigating in waters too shallow to keep the boat afloat, being thrown onto the shore by a storm or wave, or some
other event.
-ship’s agents: were asked by the master to engage a tug
-agent: said they did so at 60 pounds per day
Master: refused: engaged the tug on a lump sum basis of 4k British pounds, if the the vessel was refloated (salvage, make sure it floats again), “no cure, no
pay”: No cure no pay is a form of salvage contract in which the salvor receives no payment if s/he fails to save any property
 
CT held: the contract terms was unreasonable, too expensive, so refused to hold the contract vs owners, master has X authority
(INVALID contract entered into by the Master)
 
The Luna [1920]
• the court considered a contract made on a Humber tug operator’s standard form contract
 
-skipper (captain of fishing vessels) of a Dutch fishing vessel  engaged the tug Kingston to tow his vessel fom the mouth of the River Humber and from the dock to the sea for 15 pounds
- he spoke little English, but orally negotiated details of the service and price, signed the form, unable to read it
*the form had a provision: typical towage contract indemnity provision: tow was to indemnify tug for all damage, even if it’s tug’s negligence that was the cause
 
*The Kingston towed Luna into another vessel
 
ISSUE: WON the clause in the standard contract was unreasonable, hence outside the skipper’s authority (Owners of the tow want this to escape liability)?
 
Ct ruled: it was reasonable (surprisingly)- these clauses were OK. “Bucknill: such a term is usual in forms of contracts of towage, and is reasonable.”
 
-The decision in Luna: may be criticised on the grund that the incorporation of the standard form when signed and agreed by someone who could not read= may be decided differently, had it been shown that the tug owner knew of the skipper’s inability to understand the printed conditions
 BUT NORMAL RULE: inability to read the standard terms- no defence by itself to their effective incorporation
-But REASONABLENESS test is met
(VALID contract entered into by the Master)

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The Alfred Cape Case (1884) 50 L.T. 511, 5 Asp., M.L.C. 214

• the master of a ship in distress off Cape Finisterre concluded a towage contract w/ a vessel (that previously towed his vessel w/o payment), for 2 days before letting go.
• the vessel: agreed to tow for a further 2 days IF master agreed to pay:
*future towage
*gratuitously rendered past towage
 
ISSUE: Is this allowed?
Ct ruled: YES. The master acted reasonably.
 
(look at differences in treatment: due to dire circumstances)
(but this agency of necessity: may not be relevant given the availability of communications technology bet. masters and owners)

*distinguish: contract
 
IA: master: is always the appointed agent for the ship
IB: involuntary agent of the cargo goods
 
 

46
 Ratio
IB] Implied authority to owners of cargo
enter into towage contract X bound by any contract of
  towage/salvage made by the
ON BEHALF OF VESSEL’S owner/master of the vessel on
CARGO w/c the cargo is laden
 
-master= can bind cargo
owners for towage contracts
they enter into
In relation to towage contracts
Industrie Chimiche Italia vs. Tsavliris Maritime Co. (The Choko Star)
[1990] 1 Lloyd’s Rep. 516.
 
Court of First Instance: J. Sheen held that as the master had implied actual
authority to engage salvage assistance on behalf of his owners= he must
have actual implied authority to do the same on behalf of the cargo owners
(implication arising out of the contract of carriage).
 
Ct of Appeal: reverses. In the context of a contract of salvage, the only
basis upon which a master might be authorized to contract on behalf of
cargo owners= as an agent of necessity
But this doctrine has already been reversed…adopted J. Sheen’s earlier
opinion by the
International Salvage Convention of 1989, enacted by the Merchant
Shipping Act 1995
Article 6.2. “Unless a contract provides otherwise expressly or impliedly,
“The master or the owner of the vessel shall have the authority to conclude
[contracts for salvage operation] on behalf of the owner of the property on
board the vessel”
-EFFECT: towage expenses will form part of the general average expenses
to which cargo interests will be liable to contribute
general average: where any extraordinary sacrifice or expenditure is
voluntarily and reasonably made or incurred in time of peril for the
purpose of preserving the property imperilled in the common adventure.
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 II. AUTHORITY OF A MASTER TO TAKE A VESSEL IN TOW
1)The master of a tug Has implied actual GR: Tug master x authority to agree
authority- to make RETROSPECTIVELY TO deem services to be towage
reasonable contracts with services—originally constituted as salvage and has already
regard to provision by the been completed
tug of FUTURE towage Except: if the deeming contract was entered into while in
services service, w/c started as a salvage service and still
continuing

2)The master of a vessel X implied actual auth Ratio: it is difficult to conceive of circumstances where
X a tug (to tow another towing would relate to the usual employment of an
vessel) ordinary vessel and towing is unlikely to be necessary for
such vessel’s safety or for the prosecution of her voyage
 
*also: a vessel X a tug, will often by its nature be trading
pursuant to some contract of affreightment or charterparty
in which 3rd parties are interested as cargo
owners/charterers; undertaking towage of another vessel
may very well constitute a deviation, putting the vessel
outside the contract of carriage and with adverse
consequences w/ her insurance
 
*there is uncertainty: different treatments by different
cases; subject of express clauses in charterparties, allowed
only in situations of distress

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a)The Thetis (1869) L.R. 2A. & E. 365. A ship whilst trying to tow another
ship== collided w/her and sank
owners of sunken vessel vs. owners of towing vessel/tug: defense of
owners of towing vessel: x liable, master had x implied auth to tow
 
But the ct held: master had an implied auth to tow vessels in distress; not
avoid a policy of insurance  
b)Scaramanga vs. Stamp (1880) 5 C.P.D. 295- towage- deviation w/c
avoided charter party
-shipowner: liable for damage caused to the cargo due the deviation

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End

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