Tanker Escort Tug Operations – the legal perspective
Increasingly port authorities are insisting on escort tug arrangements for visiting tankers, a trend that has gathered pace in recent years albeit long since the groundings of the Sea Empress and Exxon Valdez highlighted the potential benefit. Around the UK coast compulsory escort arrangements are in force under local harbour regulations and much the same applies in Norway and now Sweden. Dutch port authorities are yet to require this so the trend is by no means universal.
Escort tug assistance is generally of a standby nature and, if hooked up, with a slack line, following pilot’s directions. But when things go wrong, they will do so quickly. The risks which escort tugs are intended to avoid are primarily those resulting from a blackout or loss of steering control in narrow waters leading to a grounding or collision. Risks to the tug itself include girting, collision or grounding.
Recent incidents involving tug capsize and loss of life, albeit not in tanker escort roles, include that of the Flying Phantom in fog on the Clyde in December 2007, the tug Ijsselstrom at Peterhead in June 2009 and the collision and capsize of the tug Fairplay 22 in November 2010 whilst maneuvering in strong winds to connect up off the Hook of Holland. In the event of a serious incident, attention will first be focused on cause and will then turn to liability as significant claims including for pollution, salvage or wreck removal may follow. Alternatively where an extraordinary danger to the tow has been averted by the tug’s actions, the prospect of a salvage claim will arise.
From a legal standpoint the starting point is typically that the harbour authority will, after consultation, promulgate regulations specifying the size of ships requiring escort, the Class and specification of the tugs, the distance of the escort service (26 miles in the case of Southampton, about 5 at Milford Haven and 3 miles at Immingham), routeing of the escort passage and whether the escort tug is to be made fast. This will depend entirely upon the topographical and weather characteristics of the port relative to the size and type of a visiting ship/its cargo and this will be tied in with the requirements for pilotage and minimum under-keel clearances, especially where tide is a factor. There might also be designated abort areas where the vessel can be turned or held pending further services. Unless the escort passage is a short one, Escort Class Notation has become the norm as fast and powerful tugs are necessary to keep up with tankers and perform their steering and braking requirements as well as fire fighting, if required. Most passage plans require only one tug, invariably secured aft, unless passive escort is permitted, although in the most treacherous areas or for very large tankers, a forward tug may also be a requirement.
Needless to say escort tugs require a substantial investment and so operators are looking for long-term earnings. Some terminals, such as those operated by the oil majors, offer service contracts to tug operators extending for 5 years or more. Those operators will provide exclusive around-the-clock waterborne services including towing, escort and berthing. These are detailed and onerous contracts, the terminal operators careful to ensure that the tug operators are always independent contractors and although it may contain limited “knock for knock” provisions, the contracts will inevitably be somewhat one sided in favour of the terminal.
The alternative practice is a free market within the port, especially if there are numerous terminals to be serviced. Here the tug operators do not benefit from long term contracts with terminal operators but, of course, they have still to provide Escort Notation tugs if that is a requirement of the port’s regulations and mandated by the escort passage plan. Specific terminals, for instance LNG, might still have their own dedicated tugs to ensure constant availability of assistance.
Irrespective of which in-port system prevails, escort (and other tug services), almost without exception, will in the UK be provided on the UK Standard Conditions for Towage and Other Services 1986. Similar terms apply elsewhere. In Scandinavia it will be on the Scandinavian Tugowners Standard Conditions 1985, and so on. The UK Standard Conditions are a contract model adopted elsewhere and therefore we conclude by examining briefly how these set about apportioning responsibility and some of the key issues to consider. They require no amendment for escort services.
The first question, especially in passive escorts or on arrival off berth, is when does the escort operation (with associated duties) actually commence and in turn cease. Where a tug is engaged simply to tow, this is usually when the tug is in a position to receive orders including to hook up, and will end on final orders, release of any line and when safely clear. However in an escort service, the mobilisation and return passage, categorized as services “other than” towing or escorting, still fall within the protective ambit of the contract as the tug has been put at the disposal of the hirer and logically the same applies during demobilization, unless agreed otherwise. As such, if the tug is damaged, for example by grounding en route, a right of indemnity arises. During the escort operation the tug is deemed to be the servant of the hirer who will thus be vicariously liable in the event of, say, a collision with another vessel, even if caused solely by the negligence of the tug and the tug, if sued, will have a right of indemnity from the hirer. So long as the above damage does not result from unseaworthiness of the tug resulting solely from the personal fault of the tugowner (an exceptionally high threshold even in marine law terms), the tugowner may look to the hirer for his own damage and is held harmless against all damage to the tow and her cargo or from third party claims arising. Claims against the tugowner for loss caused by delay are wholly excluded. The only exception to this regime is loss of life and personal injury. These protections extend to the tug master and crew through a standard Himalaya type clause. In any event the tugowner is always able to limit his liability to levels that are low relative to the potential risks.
Meanwhile the tug is able to bring a salvage claim, but given that the essence of an escort tow is for the tug to intervene to brake or steer the ship in the event of impending disaster, the tug must first do so. The situation will only move into the realms of salvage when, in effect, the escort has failed and extraordinary measures are called for. Such a situation might arise where, for example, the ship has run aground, is at risk of stranding on a falling tide and is refloated by the tug’s efforts. Interesting questions might arise as to the scope of the tugowner’s obligations where an escort tug equipped with fi-fi mandated by the harbour regulations, intervenes to put out a fire whilst holding the ship off the rocks. At that stage you will definitely need a solicitor.
Simon Tatham and Mike Lacey
Simon Tatham is a solicitor and partner of Tatham & Co and Mike Lacey, Master Mariner, is a consultant with TugAdvise, a specialist legal service advising those concerned in the tug and OSV markets. TugAdvise is a service provided by Tatham & Co.