Law of Tug and Tow and Offshore Contracts

Page 85


Standard form contracts: (ii) the bimco forms “towcon 2008” and “towhire 2008”

Part A. The “Towcon 2008” and “Towhire 2008” Forms

The genesis of the forms

4.1 In the 1980s, BIMCO (the Baltic and International Maritime Council) were approached by the International Salvage Union (ISU), whose members comprise the majority of the leading international towage and salvage contractors, with a view to collaborating upon the production of a standard form international towage agreement designed to act as a uniform basis for ocean towage contracts. The approach grew out of the dissatisfaction with the use of tugowners’ forms in common use for ocean towage which contained widespread exceptions adverse to the tow and the increasing use on an ad hoc basis of US forms or “the American Conditions” which adopted a simple risk allocation between tug and tow with each party bearing the risks incidental to their vessel and laying that risk off through insurance: as to the early trend away from exculpatory conditions like the UK Conditions towards a “knock-for-knock” approach of mutual allocation of risk, see Bishop (1995) 70 Tul L Rev 507. As a result of that approach, a sub-committee of the documentary committee of BIMCO, together with representatives of the ISU and of the European Tugowners Association (ETA), debated and produced two standard form contracts for international ocean towage services. The aim of the draftsmen was to produce a more balanced form of contract based on “the American Conditions” which did not, as had been the case with standard forms unilaterally prepared by tug owners or tug owners’ associations, heavily favour the tug or impose a draconian regime of exemptions to the disfavour of the tow. The UK Standard Conditions considered in the previous chapter are a paradigm of such unilateral forms. A significant problem with such forms has been well stated by Mr Lannart Hagbert, legal adviser to the ETA:

legal developments all over the world authorise courts to overrule or adapt agreement terms which, in the court’s opinion, lead to an unreasonable result. The risk of unilaterally prepared standard agreements for the benefit of one party is that a court of law might invalidate or modify such conditions.

The rest of this document is only available to i-law.com online subscribers.

If you are already a subscriber, click Log In button.

Copyright © 2024 Maritime Insights & Intelligence Limited. Maritime Insights & Intelligence Limited is registered in England and Wales with company number 13831625 and address 5th Floor, 10 St Bride Street, London, EC4A 4AD, United Kingdom. Lloyd's List Intelligence is a trading name of Maritime Insights & Intelligence Limited.

Lloyd's is the registered trademark of the Society Incorporated by the Lloyd's Act 1871 by the name of Lloyd's.