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: