As a container ship is berthing at Le Havre, the towline parts, the ship strikes the quay and damages a crane. The port authority claims the cost of repair; the shipowner turns to the towage company, which relies on its general terms and conditions. Who pays?
A presumption against the towed ship
The principle is laid down by the French Transport Code: the master of the towed ship directs the operations, and it is the towed ship that bears damage of every kind occurring during towage, unless it proves fault on the part of the tug (Article L. 5342-1). The rule covers damage suffered by the towed ship as well as damage caused to the tug or to third parties, including the quay and port installations.
The legislature’s choice is easily explained: the tug is an auxiliary, carrying out the orders given from the towed ship’s bridge. It follows that the burden of proof rests on the owner of the towed ship.
Reversing the rule by agreement
The parties may agree in writing to entrust the direction of operations to the master of the tug; the presumption is then reversed (Article L. 5342-2). The agreement must be express and in writing. The general terms and conditions of towage companies, which often restate the statutory rule, must be examined: they do not transfer the direction of operations by mere reference.
Proving fault
Fault on the part of the tug is proved by the facts of the manoeuvre: orders exchanged by radio, the ship’s VDR recordings, the tug’s position and power, the condition of the towline, weather conditions. The parting of a towline supplied by the tug, or a manoeuvre carried out contrary to orders, are classic indicators. These data are quickly overwritten: bridge recordings must be preserved as soon as the incident occurs.
And the pilot?
If a pilot was on board, the pilot advises the master without relieving the master of responsibility for the navigation of the ship. Pilot liability is governed by its own rules, set out in our page on pilot fault.
What the firm checks first
- Who was directing the manoeuvre, as shown by the radio exchanges.
- Whether there is a written agreement entrusting direction to the tug.
- The preservation of VDR and AIS data.
- The origin and condition of the parted towline.
- The insurance: hull, P&I, the tug’s liability cover.
For the firm’s services, see Salvage and assistance and Maritime litigation.
Further reading
- Maritime pilot fault: whom to sue, and for how much?
- Collision at sea or in port: who is liable, what evidence to gather, what time limit applies
- Assistance and towage at sea: is the invoice payable, and how can it be challenged?
This analysis is part of the firm’s work in maritime law.
Frequently asked questions
Is the tug liable for striking the quay during berthing?
Not in principle: the damage is borne by the towed ship, unless fault on the part of the tug is proved (Article L. 5342-1 of the Transport Code).
Can the tug’s general terms and conditions change the rule?
Only an express written agreement entrusting the direction of operations to the master of the tug reverses the presumption (Article L. 5342-2).
What evidence should be gathered?
Bridge recordings, radio exchanges, AIS data, the condition of the towline and the masters’ reports.