Research On The Legal Issues Of Maritime Towage

Chapter1, Defines the Action and Character of Towage at Sea. While analysing the theories on the nature the towage, it is concluded that the contract of towage which has characteristics of employment contract or work contract in accordance to the specific circumstances, is a service contract as well as a specially named contract. In addition, this essay also discusses the differences between towage and related behaviors, such as carriage, salvage and towage within a port, and proposes some suggestions on the related provisions in "China’s Maritime Code"(CMC).Chapter2, The Towworthy Obligation of Towage at Sea, mainly focuses on the towworthy obligation of two parties under towage contract. By studying the cases of United Kingdom, the United States as well as the cases in China, the essay has summed up the obligation of the tug and the tow. With reference to the United Kingdom cases, the nature of the towworthy obligation is analysed from the point of overrding obligation, absolute obligation and reasonable care theory. After comparation with the burden proof procedure of seaworthiness, the essay puts forward legislative suggestions for the allocation of burden proof of towworthy in towage.Chapter3, The Obiligation during Towage at Sea Voyage. During towing operation and towing voyage, the general standard of the duties between tug and tow is to excise proper skill and diligence, under which, according to the question of who is in charge of the towing operation, the duties are divided between them.Then special circumstances where towage is interrupted and termination of the towage is considered as to the duties upon the tug.The duties to a third party are embodied in the good seamanship and the navigation rules.Chapter4, The Liability to Damages of Towage at Sea.Analyses the liability to damages between tug and tow and involving third parties from the perspectives of the generality and particularity of liability in towage, in which the "dominant mind", presumption of servant relationship, control theory and the provisions in CMC are considered correlatively and particularly.Chapter5, The Exclusion of Liability in Towage at Sea. The exclusion includes exception clauses in towage contract and immunities in law. In chapter5, the essay analyses various forms of duty escaping clauses in towing standards contract, such as "employment terms and conditions","the Named Vessel" provision. Generally, the effectiveness of the exemption clause in standard contract will not be approved in judicial practice.The immunities in law mainly consists of man-made accidents and natural forces.Chapter6, The Salvage Transforming of Towage at Sea. Towage is in close connection with salvage and in certain conditions they may transform mutually. The transforming needs two conditions:one is the tow is in danger because of circumstances incurred beyond reasonable consideration by the parties, and the other is risks incurred or duties performed by the tug are out of the scope of the contract. The two parties’duty and right are changed because of this transformation and special clause in towage contract as well as the tugowner’s fault, which may affect the payment of salvage.Chapter7, Limitation of Towage at Sea. There is certain limitation in the application of the1976Convention on limitation of liability concerning Towage at Sea, while it is accessible in the law of United Kingdom and United States. In the United Kingdom, the responsible party is limited to the tonnage of vessels at fault respectively. In United States, they distinguish contractual relationship and tort between the claimant and the responsible party from a commercial perspective, and consequently, the "flotilla rule" and "pure tort" rule is applicable widely. At last it is recommended that the Chinese law related to the definition of "ship" and the calculation of limitation of liability should be improved by refering to the reasonable practice of the UK&USA.