On the high seas, the tug directs the operations and is liable for damage unless it proves fault on the part of the towed vessel; the BIMCO TOWCON and TOWHIRE 2021 forms replace that regime with a split under which each party bears its own losses, and any claim is time-barred after two years.
A statutory regime that weighs on the tug
The French Transport Code distinguishes two kinds of towage. In port, the towed vessel keeps command of the manoeuvre and bears the damage, unless the tug is at fault; our analysis of harbour towage explains how that works. On the high seas, the logic is reversed. “Towage operations on the high seas are carried out under the direction of the master of the tug”, and damage of every kind arising during the operation is borne by the tug, unless it establishes fault on the part of the towed vessel (art. L. 5342-4). The burden of proof is everything. A towline that parts in heavy weather off Cape Finisterre, a barge that runs aground after a bridle fails: if nobody knows why, the tug pays.
The statute leaves a door open. By express agreement, the parties may give direction of the operations to the master of the towed vessel, and the regime flips: the damage is then borne by the tow, unless the tug is at fault (art. L. 5342-5). The word “express” matters. An ambiguous clause, or practice on board that contradicts the contract, leaves article L. 5342-4 in force.
TOWCON or TOWHIRE: choosing by the operation
Hardly any ocean towage is done without a standard form. BIMCO offers two, both revised in 2021. TOWCON is a lump-sum contract designed for ocean towage and expressly not intended for harbour towage: it suits the transfer of a rig, a barge or a laid-up ship whose voyage can be priced in advance. TOWHIRE is paid by the day, and BIMCO intends it for operations of uncertain duration: salvage, standby, escort, short subcontracts. Picking the wrong form is not a formal slip. A lump sum signed for a tow that drags on in bad weather ruins the tug owner; an uncapped daily hire does the same to the client.
The 2021 editions modernised the whole package: termination for non-payment after seven days instead of fourteen, wear of towlines shared instead of systematically charged to the hirer, separate clauses for war risks, piracy and epidemics, new anti-corruption and sanctions clauses, and daily reports from the tug.
Knock-for-knock: the real allocation
The heart of both contracts is their liability clause, aligned in 2021 with that of SUPPLYTIME 2017. Each party bears the damage to its own property, whatever the fault, and the allocation extends to salvage costs. The tug no longer answers for the grounded barge; the barge owner no longer answers for the damaged tug. The statutory regime is set aside, and deliberately so: everyone insures what belongs to them.
Does the clause hold before a French court? Between professionals, article L. 5342-5 shows that the statutory regime is not a matter of public policy, and we consider the clause valid. It gives way, however, to gross negligence or wilful misconduct, under the general rule of contract law. A tug that sails with a towline it knows to be worn will not shelter behind knock-for-knock.
When towage turns into salvage
A tug under contract cannot turn its voyage into a rescue in order to claim a salvage reward. The 1989 London Salvage Convention says so: no payment is due as salvage unless the services rendered exceed what can reasonably be considered as due performance of a contract entered into before the danger arose (art. 17). There must be a new, unforeseen danger requiring an effort out of all proportion to the contract. That boundary is litigated, and often. Our analysis of the salvage invoice shows how.
Two years, not a day more
All claims arising from a towage operation, in port or on the high seas, are time-barred two years after the operation is completed (art. L. 5342-6). For damage found on arrival, time runs from the end of the tow, not from delivery of the survey report. BIMCO forms often refer disputes to arbitration in London; the French limitation period does not become irrelevant for all that whenever French law applies. The firm handles these cases as part of its marine salvage practice.
Frequently asked questions
Who pays for damage during an ocean towage?
The tug, unless it proves fault on the part of the towed vessel (art. L. 5342-4), unless the contract provides otherwise, as the BIMCO forms do.
What is the difference between TOWCON and TOWHIRE?
TOWCON is a lump sum for a defined ocean tow; TOWHIRE is paid by the day for operations of uncertain duration.
What is the time limit to bring a claim?
Two years after completion of the operation (art. L. 5342-6 of the Transport Code).
Can a tug claim a salvage reward?
Only if its services exceed due performance of the towage contract, in the face of a danger that arose after the contract was made (1989 Convention, art. 17).