Law of Tug and Tow and Offshore Contracts
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CHAPTER 3
Standard form contracts: (i) The uk standard conditions for towage and other services
Part A. Introduction
3.1 The UK Standard Conditions for Towage and Other Services (“the UK Standard Conditions”) have a long pedigree dating back, through successive revisions, to 1933. In that year negotiation took place between the Chamber of Shipping and the United Kingdom Tug Owners Association on the subject of the large number of towage conditions in operation in various ports. No agreement was reached, but a set of “national” conditions came into being and was rapidly adopted by UK tug owners. They represent a paradigm standard form contract, being drawn up to protect the interests of the tug owner and relatively draconian in their exclusion and restriction of any possible liability which the tug might be under to the tow. However, while less evident than in the approach of making each party bear its own loss which is found in the “Towcon” and “Towhire” forms, the UK Standard Conditions in their latest revision do seek to achieve some measure of balance between tug and tow (see eg clause 4(c)). To the extent that the concept of construction contra proferentem survives as a modern tool of interpretation after K/S Victoria Street v House of Fraser (Stores Management) Ltd [2011] EWCA Civ 904; [2012] Ch 497; Transocean Drilling U.K. Ltd v Providence Resources plc [2016] EWCA Civ 372 and Persimmon Homes Ltd v Ove Arup & Partners Ltd [2017] EWCA Civ 373 (as to which see and ), then in the case of the UK Standard Conditions, designed as a one-sided protectionist set of conditions and frequently imposed on a “take it or leave it” basis, the UK Standard Conditions remain apt to be read strictly and narrowly, albeit that their meaning is now largely hallowed in decided cases on previous versions. The UK Standard Conditions are in constant use in contracts for domestic towage operations and, as the heading of the Conditions as being conditions for towage “and other services” makes clear, in contracts for allied or connected services, for example to the offshore industry, which are provided by UK tug owners and operators. As a standard form contract, designedly in favour of tug owners, the UK Standard Conditions have been used not only by UK towage operators but are often also encountered, either unchanged or in some variant form, in other common law jurisdictions and, indeed, in other jurisdictions where tug owners have sought to adopt a standard form exclusionary wording (albeit subject to the local law). 3.2 The current form of the Conditions is the 1986 Revision. The terms of this revision are considered below (a facsimile of the Conditions is at ). While the current revision, dating from 1986, is that most usually encountered and is used in many other countries (eg Australia: see PNSL Berhad v Dalrymple Marine Services Pty Ltd (The Koumala) [2007] QCA 429, discussed below; and in Canada, where, for example, they are mirrored in many respects by the Eastern Canada Standard Towing Conditions, “ECTOW”, published by the Shipping Federation of Canada, used on the East coast and on the Great Lakes), in foreign jurisdictions towage operators may operate on older variants of the form: see eg the National Iranian Oil Corporation in its provision of tugs at Kharg Island, which still uses a “Tug Requisition form” which corresponds to a pre-1986 version of the UK Standard Conditions (see The Borvigilant and the Romina G [2003] 2 Lloyd’s Rep 520 (CA) referred to below).Page 56
Part b. Commentary on the Conditions
Clause 1: introductory and definitions
Paragraph (a)
“1. (a) The agreement between the Tugowner and the Hirer is and shall at all times be subject to and include each and all of the conditions herein-after set out.”