In conjunction with the current container vessels crises represented in Maersk Kensington’s tragedy in the eastern Gulf of Aden, and the other containership incident belongs to the Hapag-Lloyd shipping line in port of Karachi, Pakistan.

On Thursday, 16 March 2018, the crew of the Maersk Kensington reported a container fire in a cargo while en route from Salalah, Oman towards Suez, according to Maersk. While Hapag-Lloyd ship, the Tolten, clipping a stationary berthed vessel while pulling into port in the Pakistan capital.

This two different incidents have induced and summoned me to write this article to draw this significant distinction between these two incidents and the involvement of “Tugs”. The former was salvor tug and the latter was towing tug.

Towage Starts from safety and Salvage starts from danger when both of them need the use of Tug.

Tugs are used for:

1.      Transporting cargo in or on barges;

2.      Assisting vessels in distress (Salvage);

3.      Assisting larger vessel to manoeuver and berth in a confined space such as harbor or river or port.

Most major casualties at sea are prevented or diminished by private companies that maintain at the ready fleets of power tugs, firefighting equipment, pumps, etc. These companies that are ready to move promptly at short notice to vessels in distress, often in extremely bad weather, and where other danger including fire and explosion are present. They are the Professional Salvors.

Normally, such salvors are not paid in maintaining their fleets of power tugs but they are compensated by the salvage rewards in helping vessels in distress. Their role is not only important because they save ships and cargoes with millions of dollars but also protecting the environments by avoiding huge amount of pollution clean-up costs and fines.

Consequently, the significant role of such matter provided the impetus for the International Convention on Salvage 1989, which is ratified by many countries including UK.

Before this convention, the salvage award was always in dispute between the salvor and the shipowner and the owners of any other properties were in danger.

A ‘salvage operation’ is any act or activity undertaken to assist a vessel or any other property in danger in navigable waters or in any other waters whatsoever.

The 1989 convention is applied on any salvage operation related to flag registered vessel belongs to the ratified state unless the contract of salvage otherwise provides.

Salvage operation can be rendered through one of the following manners:

1.      Without contact; as mentioned in UK Marine Insurance Act 1906 section 65 subsection (2):

“Salvage charges” means the charges recoverable under maritime law by a salvor independently of contract.

2.      Under a contact:

a)     The agreed Lloyd’s Open Form (LOF)

b)     Under bespoke agreed contract.

The main rule is “no cure, no pay”. Or in other word no cure no honey. Therefore, the main elements of Salvage Operations are property in danger, voluntary of service and the success to get the reward (even if it is partial success).

However, there is an exception to this agreed concept of no cure no pay is enshrined in Article 14 of this 1989 Convention. This provides a special compensation if the salvor managed to prevent or mitigate damage to environment.

The salvage reward is calculated for sure with consideration of degree of success. Also the determiner is the value of the salvaged property when it is returned to its owner by the salvor, but not the insured value or the market value before the incident. The reward is payable out of the property salved and therefore can never exceed its total value as calculated after the salvage operations are complete.

This salvage reward is payable by those, such as shipowners and cargo owners, whose property has benefited. Payment is due from each interest according to its value after the salvage operation is complete

Often the value of the cargo is much higher than that of the ship carrying it, meaning that cargo interests pay a higher share of the salvage. This results in extra care being taken to ensure that the services provided were salvage and not, for instance, towage.

The master of the vessel needing salvage services has the authority of the owner of the vessel and of the owner of the cargo on board the vessel to conclude salvage contracts on their behalf (Article 6.2). This provision ‘gives a master wide authority’ to conclude a binding contract between cargo and a third party.

The owners of the salved property and the master of the vessel have a duty to cooperate fully with the salvor during the course of the salvage and in doing so they must exercise due care to prevent or minimise damage to the environment (Article 8).

However, the salvor must, whenever circumstances reasonably require, seek assistance from other salvors and accept the intervention of other salvors when reasonably requested to do so by the owner or master of the vessel or other property in danger. The amount of the salvor’s reward shall not be prejudiced if the owner’s or master’s request was unreasonable.

It was held by house of lord in a famous case of The Troilus (1951) that the service to be salvage in view of the unusual circumstances involved. This meant that cargo had to contribute to the services as salvage whereas, if the service had been deemed towage, this would have been paid by the shipowner in full.

Towage versus salvage is an important point for all parties concerned because of the potential cost difference.

In this current case of Hapag-Lloyd Tolten, the tugs were in their duty to help the mentioned vessel in its maneuvering and berthing. This kind of relation in general arise under contract.

Towage is a service under contract by one ship to another for money. The most common reason for a ship to require towage is because it does not have a working engine. This can be in the open sea or in a port where the vessels need berthing assistance.

Also it is defined as “… the employment of one vessel to expedite the voyage of another when nothing more is required then the accelerating of her progress.”

There is much local law on tugs and towage but the contracts can be split into two basic types:

·        Contract which place liability on tow (vessels) regardless of any negligence or fault like UKSTC 1986 and Scandinavian Tug owners Standard Conditions ;

·        Contracts which apportion liability on a “knock for knock” basis which means both parties are responsible for any loss or damage like; TOWCON and TOWHIRE.

Such contracts were always written in accordance of the UK Standard Conditions for Towage and other services 1986. The conditions are incorporated into most of towage contacts for towage in UK Ports and many other countries. These conditions are more weighted in favour of tug owner with great protection:

1- any kind of damage done by or to the tug; and

 2- loss of the tug or tow (the Tow will be responsible for the tug damages); and

3- any claim by a third party (e.g. a wharf owner) for any loss or damage, even if the cause was negligence, or unseaworthiness of the tug, its machinery, boilers, towing gear, equipment, lines, ropes or hawsers, lack of fuel, stores, speed or otherwise.

4- Delay and detention, and also consequences of war, riot, civil commotions, terrorism, sabotage, strikes or other disturbances, even if caused by their own fault.

Unless the tow can show that the loss or damage was caused by the actual fault or the knowledge of the tug owner in failing to make the tug seaworthy.

Salvage and Towage are always very long subject in this special international maritime world.