Law of Tug and Tow and Offshore Contracts
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CHAPTER 11
Collisions involving tug and tow
Part A. Preliminary Remarks
The scope of the chapter
11.1 This chapter considers the relationship between the tug and her tow in the event of a collision and how the question of the liability of each, both for its own acts and for those of the other, is addressed by the courts. In the ordinary course of events, a collision at sea between two or more vessels will give rise to a cause of action in negligence in the event of navigational fault or omission on the part of one or more vessels which results in loss or damage to another vessel. Physical contact between vessels is not the only instance where a vessel may sue another for negligence in navigation: a vessel may proceed too fast and cause a wash which damages another vessel; a vessel by its negligent navigation may force another vessel to take evasive action which results in that vessel colliding or stranding. 11.2 The special features in the case of tug and tow are, first, the contract of towage which regulates duties, obligations and liabilities between tug and tow (as seen in above); secondly, the immateriality of that contract to a third vessel which is involved in a collision with tug and/or tow in determining which of tug and/or tow is liable; thirdly, the question of the apportionment of liability which arises where tug, tow and third party vessels are in collision; and lastly, the special navigational considerations which a towage convoy or flotilla will often present to other vessels under way. This last aspect can, given the wide variety of seaborne objects under tow and the potential for a modern towage convoy or flotilla to extend over very great areas of navigable waters, raise particular difficulties: for example, with convoys of tuna cages and, especially, arrays of seismic streamers (as to which see The Western Neptune and The St Louis Express [2010] 1 Lloyd’s Rep 158, considered further below). 11.3 A general treatment of collision law and practice is beyond the scope of this book. See for a detailed treatment of the subject Marsden and Gault, Collisions at Sea (14th edn, 2016) and Sturt, The Collision Regulations (2nd edn, 1984). For the general regime of collision liabilities and apportionment of liability, see Meeson and Kimbell, Admiralty Jurisdiction and Practice (4th edn, 2011) which also contains a detailed modern account of the Admiralty Court practice in collision cases; see also a useful account in The Law and Practice of Admiralty Matters (2nd edn, 2016) by Professor Sarah Derrington and James Turner QC.Navigation and the Collision Regulations
Navigation and navigational rules
11.4 The duties upon a vessel in relation to navigation arise from two sources: first, from the ordinary duty to exercise reasonable care and skill, in other words, the duties of good seamanship; and, secondly, from the Collision Regulations which lay down navigational “Rules.” The history of the formal regulation of the rules of the road at sea dates back to 1840 when five rules of seamanship, three for sailing vessels and two for steamships, were promulgated by Trinity House. Increased regulation by the Board of Trade followed, with new codifications in 1863 and 1910. Following World War II, international agreement was reached on rules of navigation in 1948.Page 524
The role of the Collision Regulations
11.6 The interrelationship between the ordinary dictates of good seamanship and the Collision Regulations is a pragmatic one. As was said by Sheen J in The Roseline [1981] 2 Lloyd’s Rep 410 at p. 411, the Regulations very often state in codified form what has long been recognised as a rule of good seamanship and of common sense. For present purposes, the position can be summarised as follows. 11.7 First, failure to comply with the Collision Regulations in circumstances which mean that the Regulations have been wrongfully contravened (see below) is a criminal offence and the owner of the vessel, the master and any person having the conduct of the vessel may be detained by the Department of Transport. 11.8 Secondly, a contravention of the Regulations formerly resulted in the vessel in contravention being deemed to be at fault in the event of a collision, irrespective of whether the breach of the Regulations played any causative part in the collision (per section 17 of the Merchant Shipping Act 1873). This statutory presumption of fault was abolished by section 4 of the Maritime Conventions Act 1911. However, while proof of a breach of the Regulations is of itself now neutral in a civil collision action until the plaintiff proves that the vessel was thereby at fault and that the fault caused or contributed to the collision or other loss or damage, a strong inference of fault or of negligent conduct will usually arise if it is shown that the Regulations were breached, leaving the plaintiff to establish causation. Compare the position in the United States, which still corresponds to that in the United Kingdom between 1873 and 1911: the leading case is The Philadelphia 86 US 125 (1873) under which, once a breach of the Regulations is made out, the rule is laid down that “the burden rests upon the ship of showing not merely that her fault might not have been one of the causes or that it was probably not, but that it could not have been.” 11.9 Thirdly, the Collision Regulations, while laying down rules of navigation, provide also for the impact of special circumstances to which the rules may not adequately apply and to which they may not properly be applicable. The 1972 Regulations themselves state, by Rule 2(b), that “in construing and complying with these Rules due regard is to be had to all dangers of navigation and collision and to any special circumstances, including the limitations of the vessels involved, which may make a departure from these Rules necessary to avoid immediate danger.” 11.10 Lastly, as already noted, the Collision Regulations co-exist with the ordinary duty of good seamanship. Accordingly, as has been succinctly stated (see Sturt, at p. 24, para. 1.14):Nothing in the 1972 Rules exonerates any vessel, or its owner, master or crew, from the consequences of any neglect to comply with the Rules or of the neglect of any precaution which may be required by the ordinary practice of seamen or by the special circumstances of the case.