Inland Waters and Towing

There has never been any doubt that admiralty jurisdiction extends to the high seas and the territorial seas. The same may not be said of inland waters. Originally U.S. courts applied the English rules for determining admiralty jurisdiction. Those rules, however, would exclude from admiralty jurisdiction incidents and transactions involving the Great Lakes and inland waterways. In a series of cases, the U.S. Supreme Court overruled its earlier precedents and abandoned the English rules as unsuited to the inland water transportation system of the United States.

Navigable Waters

In place of the English rules, the U.S. Supreme Court equated the scope of admiralty jurisdiction with “navigable waters.” The term “navigable waters of the United States” is a term of art that refers to bodies of water that are navigable in fact. This includes waters used or capable to being used as waterborne highways of commerce, including those presently sustaining the transportation of goods or passengers by watercraft. To qualify as “navigable waters,” bodies of water must “form in their ordinary condition by themselves, or by uniting with other waters, a continued highway over which commerce is or may be carried on with other States or foreign countries in the customary modes in which such commerce is conducted by water.” A body of water that is completely land-locked within a single state is not navigable for purposes of admiralty jurisdiction. It is important to note, however, that a body of water need not flow between two states or into the sea to be navigable. A body of water may be navigable even if located entirely within one state as long as it flows into another body of water that, in turn, flows into another state or the sea. A body of water need only be a link in the chain of interstate or foreign commerce. Man-made bodies of water, such as canals, may qualify as navigational waters if they are capable of sustaining commerce. A body of water need not be navigable at all times, and some courts have recognized the doctrine of “seasonal navigability.”

Towage

In the United States, there is a distinction between towage contracts and contracts of affreightment. The distinction is important because different liability regimes apply depending on which type of contract is used. A contract of affreightment essentially is an undertaking by one party to transport cargo from one place to another. A towage contract involves an undertaking by one party to move another party’s vessel (such as a barge) or structure from one place to another. Where the party performing the transportation function supplies both the tug and the barge to carry another party’s goods from one place to another, the contract is one of affreightment.

Towage contracts are governed by the general maritime law. Under U.S. towage law a tower does not become the bailee of the towed vessel or its cargo. Further, a tower (often a tug boat operator) may not contract out of liability for its own negligence. The formation of a towage contract, either written or oral is subject to the common law of contracts. A maritime lien will arise against a towed vessel whose owner does not pay for services rendered under a towage contract.

If a tug damages its tow, its liability is determined under tort law. Towage law imposes duties on the tug beyond any specific undertaking stated in the towage contract. Foremost among these duties is “the duty to exercise reasonable care and maritime skill as prudent navigators employ for the performance of similar service.” However, there is no presumption of negligence against a tug that receives a tow in good condition and later delivers it in damaged condition. On the contrary, the owner of the towed vessel has the burden of proving that the damage was caused by the breach of the tug’s duty of reasonable care.

A vessel owner that contracts to have its vessel towed has the duty of providing a seaworthy vessel. The tow must be structurally sound and properly equipped. Further, it must be properly manned, if it has a crew, and properly loaded. The tug has duty to visually inspect the tow before the voyage, but does not have to perform a detailed inspection of the tow to ensure its seaworthiness. However, if the tug knows that the tow is unseaworthy and fails “to use reasonable care under the circumstances,” then the tug may be held liable for the loss. Generally, there is a presumption of unseaworthiness against a tow that sinks in calm water for no apparent reason. To overcome the presumption, the tow must prove that the loss resulted from the tug’s negligence.

Excerpts from Admiralty and Maritime Law by Professor Robert Force (Federal Judicial Center 2004).