By John K. Fulweiler
Maybe you’re a stalwart. “Let ‘em chase football scores and fall foliage,” you mumble. “Right here, best sailing there is.” And your spouse, lips pursed in blue, no doubt agrees. The wind blows harder and there’s a white capped loneliness to autumn waters. This is sailing as you imagine. You and your boat etching a path across an empty sea. Of course, the romance disappears when your season-worn chain plate fails or your rudder post concedes defeat. Then and there, you just want a tow home and a swig of something amber colored. All of which makes it worthwhile to know a little about the maritime law of tug and tow.
To my mind, a tug and tow is like a couple that fight a lot. Yeah, they might have their good times, but they can really pull down some voodoo too. A tug and its tow squabble over all sorts of things beginning with who’s supposed to do what and the extent of eachother’s responsibilities. These unions sometimes give rise to unholy rows; the kind that put attorneys’ kids through college! All of which is why it’s worth spending a little time with some of the bigger tug and tow issues so maybe you can spot and steer clear of the next championship bout.
First off, the owner of the tow (whether it’s a dead ship, barge or yacht) typically has a general duty to provide a seaworthy vessel. And this doesn’t just mean a structurally sound vessel, it means a tow that’s prepared to withstand the conditions and obstacles it’ll encounter during the tow. Whether this burden is satisfied depends on the facts and takes into consideration the intended voyage, the hazards posed by the voyage, etc.
A tow’s duty, however, can become slightly muddled (thereby giving rise to litigation) because the tug also has a certain amount of responsibility for ensuring the tow’s seaworthiness.
The tug’s responsibility is different and typically not as extensive. While the maritime law doesn’t make the tug a baillee or insurer of the tow, it tends to require the tug protect the tow from losses arising from an unseaworthy condition which is so apparent it’d be negligent for the voyage to proceed. In addition, and reasonably enough, the tug is responsible for safely navigating the tow to its destination. The corollary is a tug may be responsible to third persons damaged by the tow under the theory the tug is in charge of the undertaking. Whatever the case, courts sometimes discuss a tug’s overall responsibility as requiring it exercise such reasonable care and maritime skill as prudent navigators employ for the performance of similar services.
Not unexpectedly, you can find some shallows in the tug-tow relationship at the end of the voyage. How it happens is it’s not unusual for a tug to complete the towage, moor the tow and thereafter sail into the horizon. Meanwhile, the tow inevitably takes on water, succumbs to the weather or is somehow damaged, resulting in a claim against the tug. These cases are defensible, but are difficult to obtain an early outcome and may usually require a trial because of the many factual disputes.
Speaking broadly, a tug’s responsibility for the tow ceases upon the proper mooring of the tow. As a result, most claims will turn on whether the moorage was, indeed, proper. Usually, delivery of the tow into the hands of the consignee will relieve the tug of future responsibility.
With a looming potential for liability, a tug will sometimes attempt to limit its exposure through a contractual relationship. However, unless properly tailored, a carte-blanche attempt to deep-six responsibilities can run aground and sink on the shoals well-developed law. For instance, and it ain’t something widely known, the Supreme Court has held that in a marine towing contract, a tug cannot completely release itself from liability for negligence.
Like many a coupling, the tug and tow relationship is complicated. Further, it’s an area which while having some central, legal principles doesn’t contain the raft of decisions found in cargo or personal injury law. As a result, the potential for disputes developing into claims should not be unexpected and the prudent tug or tow should take care to fully understand its liabilities and responsibilities. Better yet, be like one of those Hollywood stars with their divorce attorney on speed dial ‘cept, in this case, have your admiralty attorney on call!
This article is provided for your general information, is not legal opinion and should not be relied upon. Always seek legal counsel to understand your rights and remedies.
Underway and making way.
John K. Fulweiler, Esq. is a licensed captain and a Proctor-In-Admiralty. His legal practice is devoted to maritime law and he represents individuals and marine businesses throughout the Atlantic and Gulf Coasts. He does not represent insurance companies. He may be reached anytime at 1-800-383-MAYDAY (6293), or, at his Newport, Rhode Island desk at 401-667-0977 or john@saltwaterlaw.com.
