The UK standard conditions for towage: New conditions issued on 12 November 2024

On 12 November 2024, a new edition of the UK Standard Conditions for Towage and Other Services (the UKSCT 2024) was issued by the British Tugowners’ Association. The UKSCT 2024 modernises the well-known 1986 Conditions, reflecting current industry practice and taking into account legal developments over the past 38 years.

The UKSCT 2024 provides a framework of liability protection for tugs and tugowners when assisting other vessels.  It reflects the fact that towage is a complex business, and often places tugs in hazardous environments, particularly where they are under the orders of third parties, whether that be a ship’s master or a pilot. 

In this briefing, Paul Dean and Nicholas Kazaz, members of the drafting committee of the UKSCT 2024, summarise the key changes.

Clause 1 – Definitions

As a general point, the language of the form has been modernised (e.g. using gender neutral language, reference to autonomous systems, computer hacking, and phishing).

Clause 1 has been simplified by adding clarity to the definition of “whilst Towing“, and by considering how Towing begins and ends: Towing starts when the tug is in a position to commence Towing (defined at Clause 1(b)(i)).  Towing ends when the tug has ceased Towing and is safely clear. This is important because these link to when the indemnity provisions apply (see Clause 4).

The definition of “negligence” now expressly includes gross negligence.  Although under English law, negligence automatically includes “gross negligence”, this is not the case under some legal systems. 

Clause 2 – Joint and several application

The new wording clarifies that if a Hirer (defined at Clause 1(b)(v), usually the tow owner) arranges towage services and a vessel accepts those services, the UKSCT binds the vessel owner.  Essentially, it makes it difficult for the Hirer to deny that the terms apply to them.

Clause 3 – The tug is the servant of the tow

Clause 3 holds the Hirer liable for any act or omission of the crew of the tug and any others the Tugowner (defined at Clause 1(b)(vi)) engages.  While this is not new, the updated conditions clarify that the Hirer’s liability excludes any act or omission committed intentionally or recklessly to cause harm by anyone deemed to be a servant of the Hirer. This exclusion rebalances Clause 3, so that it is not deemed unreasonable.

Clause 4 – Liability and indemnity

The liability regime is central to UKSCT 2024 (and to the 1986 Conditions).  It has been simplified, the language has been modernised, and the exceptions made clearer. 

Clause 5 – Substitution and agency

Under Clause 5(c), if a Tugowner engages another Tugowner to provide services, the Tugowner retains no liability for the work.

Clause 7 – Force majeure and delay

Clause 7(a) expands the list of force majeure events to align with modern commercial practice.  The list of exclusions now includes cyber threats, like ‘computer malware’, and the consequences of piracy and disease, among others.

Clause 8 – Himalaya Clause

Clause 8 is divided into subclauses (a) and (b). Under subclause (a), the Hirer undertakes not to bring actions against any servant or agent of the Tugowner.  Subclause (b) is a standard, modern Himalaya Clause.  Therefore, the Tugowner’s servants and agents enjoy the benefit of the Tugowner’s defences and limitations of liability.

Clause 9 – Governing law and jurisdiction

Clause 9 has been updated, allowing the parties the right to agree their own governing law and jurisdiction, albeit with English law as the default option.

Conclusion

It is essential to understand the changes to the UKSCT and how they impact your business. Often, parties incorporate UKSCT into agreements by reference, and we expect to see parties starting to incorporate UKSCT 2024 going forward.

HFW proudly contributed to the British Tugowners’ Association’s (BTA) drafting committee through the expertise of Partner and Global Head of Shipping Paul Dean and Senior Associate Nicholas Kazaz, and thank the BTA for inviting us to participate in this important project.

The UKSCT 2024, foreword, and explanatory notes can be accessed on the BTA’s website by clicking here.