Lex Portus (Dec 2021)
Legal Regulation of Sea Towage Contracts in the EU Countries
Abstract
In this article, the authors are trying to compare and analyze the main peculiarities of legal regulation of the contract of towage at sea in such common law countries as Great Britain, USA and Canada, and some countries of the European Union (Germany, Lithuania, Poland). The first part of the study is devoted to the analysis of the influence of towing technology on its legal regulation. The authors consider different towing options with the main difference being towing guidelines. The article analyzes how the technological aspects of towing have influenced the development of various standard forms of towage contracts adopted in the international maritime sector. The second part of the study analyzes the connections, similarities and differences between towing and salvages. Salvages services are provided when the vessel is in such a dangerous situation that the master has no real choice but to accept salvages services so that the vessel or cargo is not lost. Towing services are provided when the vessel is safe, so the shipowner can choose to have the vessel repaired on site or conclude a towing contract to bring the vessel to a convenient port. The nature of towage and salvages services at sea also determines the difference between towage and salvages charges. Payment for towing services is carried out on the basis and under the terms of the towing contract. At the same time, given the surprising nature of salvages at sea, it is impossible to foresee in advance the amount of remuneration for salvages operations at sea, therefore, the amount of remuneration usually depends on the value of the salvaged property. The third part analyzes the contract of towage, the rights, and obligations of the parties, especially the legal regulation of carriage, some court decisions of common law countries and some of European Union countries, such as Germany, Lithuania, Poland. In Lithuania and Poland, a towage contract can be classified as consensual, paid, and bilateral. In some cases, a contract of towage may be considered as multilateral. Briefly comparing the Lithuanian and Polish legal regulation of towage relations, one can conclude that there are no special differences between them. At the same time, In German law a towage contract is not codified as a specific art of a contract. German law regulates that a towage contract (Germ. Schleppvertrag or Remorkvertrag) can be recognized either as a contract to produce a work (Germ. Werkvertrag), or as a contract for services (Germ. Dienstvertrag) or a contract of carriage (Germ. Frachtvertrag). In common law countries, a contract of towage is considered to be a service contract. Therefore, in accordance with the contract of towage, the owners of the tug undertake to provide a towing service themselves, during which they are the performer, the crew, and supply, at the same time. Therefore, they undertake to provide 1) an agreed or specified service, or 2) to achieve an agreed specific result, or 3) to provide services for an agreed or specified period of time in exchange for periodic or lump sum payments.
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