1 Avtor Naslov gradiva Univerza v Ljubljani Fakulteta za pomorstvo in prometb TOWAGE AND PILOTAGE CONTRACT Doc. dr. Boris Jerman Norman Martinez Ph.D

2 Avtor Naslov gradiva Univerza v Ljubljani Fakulteta za pomorstvo in prometb Introduction Towage and pilotage are from technical point of view »ancillary« services in performing sea carriage but on the other hand indispensable for it realization. These activities are very connected with the performance of sea carriage in ports, although they can be performed also in other places.

3 Avtor Naslov gradiva Univerza v Ljubljani Fakulteta za pomorstvo in prometb Definition of towage The act or services of towing ship and vessels, usually by means of a small vessel called a »tug«. There exist different divisions of towage but the most known is division according to space where towage is performed. From this point of view we know two main divisions: port towage (towage maneuver), transport towage (towage on open sea). and division based on the fact if the towage is compulsory: compulsory towage, non-compulsory towage.

4 Avtor Naslov gradiva Univerza v Ljubljani Fakulteta za pomorstvo in prometb A contract of towage A contract of towage is: A contract by which the ship-owner of a towing vessel shall undertake to tow or push another vessel to a specific location, or over a specific time, or to perform a specific task; the ship-owner of the vessel towed shall undertake to pay a towage fee for the service. Main characteristics of the contract of towage are: it is a contract for services (because towage operator has to reach agreed result and he acts in his own behalf), it is an oral contract (there is no need of written form although in practice it is stipulated mostly in written form).

5 Avtor Naslov gradiva Univerza v Ljubljani Fakulteta za pomorstvo in prometb Who conduct a towage This is one of the main questions; which is today almost resolved: Towage shall be conducted under the command of the master of the towed vessel unless explicitly otherwise stipulated in the contract (Art. 623 Slovene Maritime Code). In the past it was contrary, the towage was conducted by the master of the towing vessel. To make a shift from such a system two cases are very important: The Niobe ( P.D. 55), where the court took the position that the towage is the joint undertaking of towing and towed vessel, which is leaded by its captain, S.S. Devonshire v. The Barge Leslie (1912 A.C. 634) where the court explained that towed vessel has a lot of control and means to influence it position during a towage, therefore it can not be a pasive participant in a towage. By this case increased the position of the towed vessel captain.

6 Avtor Naslov gradiva Univerza v Ljubljani Fakulteta za pomorstvo in prometb Liability of the towage vessel Two types of liabilities exist: fault Liability, strict Liability. In fault liability - a person is liable for damage on the basis of subjective relation toward damage, which can be intent or negligence. In strict liability - it is enough the causation between the act of a person and the damage. For a long time it was not clear if the liability of the towage is fault or strict.

7 Avtor Naslov gradiva Univerza v Ljubljani Fakulteta za pomorstvo in prometb The dilemma was solved by the case: The Julia (1861 Lush 224) and The Minnehaha (1861 Lush 335), where it was explained that a performer of towage is under obligation to use reasonable diligence and skill. Important role in enforcing the fault liability - the Hague rules: They introduced the presumed fault liability in performing sea carriage. This convention does not regulate towage, but it influenced all other contracts related to sea carriage.

8 Avtor Naslov gradiva Univerza v Ljubljani Fakulteta za pomorstvo in prometb Start and the end of towage The main obligation of the towage performer is to stay with the tow and to preserve in the competition of the towage service. This stage is also a period of his responsibility. From this aspect is important when the towage start and when it end. According to Slovene Maritime code (Article 624 of Slovene Maritime Code): Towage shall start when the towage vessel under the orders of the master of the towed vessel is in such a position that it may conduct towage or, if under the orders of the master of the towed ship, when the towage vessel accepts or delivers the towing rope or when it begins to push the towed ship or engages in any other maneuver for towage, depending on which occurred sooner.

9 Avtor Naslov gradiva Univerza v Ljubljani Fakulteta za pomorstvo in prometb Towage shall end when the order of the master of the towed ship to untie the tow rope or pushing or any other maneuver required to tow is required to tow is completed, depending on which occurred last. Sometimes towage events cause interruption of towage like: the tear of a rope, defect on the tug's engine etc. These events do not mean the end of a towage contract; a towage shall to be continued immediately after the end of such events.

10 Avtor Naslov gradiva Univerza v Ljubljani Fakulteta za pomorstvo in prometb Towage and salvage: Tug's are very often engaged in salvage. The main reason is they have very potent engines and they are equipped to make salvage. In this respect there is a question regarding the relationship between towage and salvage. The court practice states, that towage can be transformed in salvage when: the tow is in danger by reason of circumstances which could not reasonably have been contemplated by the parties when the engagement was made and, that risks are run, or responsibility undertaken, of duties performed, which could not reasonably be regarded as being within the scope of such engagement.

11 Avtor Naslov gradiva Univerza v Ljubljani Fakulteta za pomorstvo in prometb This question was in very adequate way solved by the Salvage convention from 1910, which defines: »A tug has no right to remuneration for assistance to or salvage of the vessel she is towing or of the vessel's cargo, except she has rendered exceptional services which cannot be considered as rendered in fulfillment of the contract of towage (Article 4)«.

12 Avtor Naslov gradiva Univerza v Ljubljani Fakulteta za pomorstvo in prometb Definition of pilotage According to Slovene Maritime Code the pilotage is: »the act whereby a professional person (pilot) gives instructions to a shipmaster on the steering of the ship in order to ensure safe navigation in ports and in other areas of the territorial sea and internal waters (Article 78 Slovene Maritime code)«. There exist two types of pilotage: compulsory pilotage (when competent state authority defines that pilotage shall be obligatory), non compulsory pilotage (it is upon the will of ship owner if he will not serve with the pilotage).

13 Avtor Naslov gradiva Univerza v Ljubljani Fakulteta za pomorstvo in prometb Contract for pilotage Contract of Pilotage is a contract stipulated between the ship-owner, represented by shipmaster and pilot, who obliges himself in change for the remuneration to advise the shipmaster direction in determination of maneuver necessary to perform navigation. Main characteristics of the contract of pilotage are: it is a contract for services, although there are several opinions that it is a contract for subordinated work (these opinions has no grounds because pilot does not take a part of crew and he works for his own account), it is an oral contract (there is no requirement it shall be stipulated in any form, although it is usually stipulated in written form).

14 Avtor Naslov gradiva Univerza v Ljubljani Fakulteta za pomorstvo in prometb Pilot's liability Liability of pilot is based on fault: the pilot shall perform his services with due care and attention, to professional standards.

15 Avtor Naslov gradiva Univerza v Ljubljani Fakulteta za pomorstvo in prometb Pilot's liability toward third persons Regarding the pilot liability there are a lot of questions related to his liability toward third persons. In a lot of legal systems in the past it was regulated that the pilot was liable toward third persons, when he caused a damage by not adequate pilotage. In United Kingdom the pilot did not respond to third persons in case of non- compulsory pilotage, it did only in case of compulsory pilotage, because it was not treated as a servant of shipowner.

16 Avtor Naslov gradiva Univerza v Ljubljani Fakulteta za pomorstvo in prometb Such a system was abolished by Pilotage Act from 1913 (where also in case of compulsory pilotage for a damage toward third persons caused by pilot responded only shipowner). This principle can be meet in Art. 5. of the Convention for the Unification of Certain Rules of Law with respect to Collisions between Vessels: »The liability imposed by the preceding Articles attaches in cases where the collision is caused by the fault of a pilot, even when the pilot is carried by compulsion of law«. The system when a pilot responds for a damage cause to third persons is still present in the United States.

17 Avtor Naslov gradiva Univerza v Ljubljani Fakulteta za pomorstvo in prometb Towage and pilotage as the activites in public interest Towage and pilotage is in many cases in all legal systems compulsory (in Slovene Navigation Code when the towage is compulsory is prescribed by Articles 88. and 89., when the pilotage is compulsory is on the other hand prescribed by Article 79). The main reason is safety of navigation, what can be seen in public interest.

18 Avtor Naslov gradiva Univerza v Ljubljani Fakulteta za pomorstvo in prometb What influence has the assurance of navigation's safety by towage and pilotage? A towage and pilotage under certain circumstances; because of the assurance of safety can be performed under the condition of monopoly, without infringing the EC's Treaty provisions of competition.