Lloyd's Maritime and Commercial Law Quarterly
English Shipping Law
Stephen Girvin *
CASES
112. A Turtle Offshore SA v. Superior Trading Inc (The A Turtle)1
Towage—TOWCON—tug running out of fuel—whether tug-owner failed to exercise due diligence—whether tug-owner protected from liability—whether entitled to balance of freight
T, the owners of a semi-submersible drilling rig, the A Turtle, arranged with S that S’s tug, the Mighty Deliverer, a “pusher” tug, would tow the A Turtle from Brazil to Singapore via Cape Town. The contractual arrangements were made on the standard towage contract, TOWCON. The Mighty Deliverer ran out of fuel in the South Atlantic, whereupon the towage connection was released and the rig drifted away from the tug. She was later found on the shores of Tristan da Cunha. Salvage attempts failed and the wreck of the rig was later removed and dumped at sea. T claimed damages of US$20 million for the loss of the rig, contending that the defendants were in breach of the TOWCON. S denied that they were in breach of contract but relied alternatively on cl 18 of the TOWCON form as excluding their liability.
The issues for the court concerned whether S had breached the TOWCON form and, if so, whether it was protected from liability by TOWCON, cl 18. The final issue was whether S was entitled to the sum sought in its counterclaim, namely 95 per cent of the agreed freight, the sum of US$1,871,500 (5 per cent having been earned on signing TOWCON and paid).
Decision: Claim and counterclaim dismissed.
Held: (1) S was in breach of contract in failing to exercise due diligence to tender the tug at the commencement of the voyage in a seaworthy condition and in all respects ready to perform the towage. (2) It had made no proper attempt to assess the likely speed of the voyage to Cape Town and to ensure that the tug was tendered with sufficient bunkers to reach Cape Town. (3) S was also in breach of contract in failing to exercise best endeavours to replenish the bunkers during the performance of the voyage once it became obvious that that the tug would run out of fuel before reaching Cape Town. (4) Best endeavours required that the tug be ordered to return to South America, where her bunkers could be replenished. (5) However, the defendants were protected from liability by cl 18,
* Faculty of Law, National University of Singapore.
1. [2008] EWHC 3034 (Admlty); [2009] 1 Lloyd’s Rep 177; [2008] 2 CLC 953 (QBD: Teare J).
ENGLISH SHIPPING LAW
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