Lloyd's Maritime and Commercial Law Quarterly
TOWAGE OR SALVAGE?
The Manchester
The Manchester
1 is a South African case dealing with the relationship between towage and salvage within the context of a standard form contract. It was reported in 1981 and has so far attracted only brief and almost entirely uncritical comment.2 But the decision might well have been successfully reversed on appeal and is proving sufficiently controversial to require further examination, in the light of its practical importance. The case governs the construction of a standard form contract which is currently and widely used by South African Transport Services (formerly known as the South African Railways and Harbours Administration). Moreover, foreign shipowners who find their vessels disabled in the vicinity of the long and dangerous South African coastline may well think, on the basis of familiar standard form towage contracts,3 that they are entering into a towage contract when they accept the particular standard form contract offered by South African Transport Services. Only later may they discover that they are liable, on the basis of The Manchester, to have their vessel, its cargo, equipment, furniture, stores, bunkers and freight arrested in an action in rem
4 on the basis of a salvage claim.5
Before dealing with The Manchester, reference should be made to those cases, not considered in The Manchester, discussing the test as to when towage becomes salvage. The South African approach has been to ask whether or not the tug performed services which went beyond the scope of the towage contract when the tow was in a position of danger.6 Since various circumstances may give rise to a salvage contract,7 there are no a priori rules in determining which services go beyond towage. Subsequent to the decision in The Manchester, English law is now applicable in South Africa in respect of a salvage claim in terms of s. 6(1)(a) of the Admiralty Jurisdiction Regulation Act 1983.8 It is, therefore, also necessary to note formulation of the test in English law as:
1. South African Railways and Harbours v. Johnson Navigation Co. S.A. (The Manchester) 1981 (2) S.A. 798 (C).
2. Advocate, “Estimating Salvage Claims” (1981) 11 Businessman’s Law 28, at 29. Very little has been written on the South African law of salvage. See generally: B. R. Bamford, The Law of Shipping and Carriage in South Africa, 3rd edn. (1983), 74–88; J. P. Van Niekerk, Salvage, Towage and General Average, No. 2 in the Tax and Business Law Centre Monograph Series, University of South Africa (1985).
3. More familiar standard form towage contracts typically provide that, if circumstances arise beyond the contemplation of the towage contract, the tug will render appropriate salvage assistance. Also, the tug master is usually empowered to accept salvage services from any vessel or person on behalf of the tug or tow.
4. Admiralty Jurisdiction Regulation Act 105 of 1983, s. 3(5).
5. See ibid, ss. 1(1)(ii)(j), 7(2)(a).
6. The Harry Escombe 1920 A.D. 187, 199; The Sellasia 1926 C.P.D. 437, 444.
7. In The Sellasia, ibid, at 440–441, Gardiner, J.P., adopted Dr Lushington’s views in The Princess Alice (1848) 3 W.Rob. 138 to the effect that towage may be converted into salvage where, for instance, the tow is disabled in her hull or rigging, or where she is aground, or where the service itself is necessarily attended with danger or extraordinary labour to the towing vessel.
8. For a discussion of s. 6 of the 1983 Act, see Staniland, “The Implementation of the Admiralty Jurisdiction Regulation Act in South Africa” [1985] 4 LMCLQ 462, 464.
16