At sea, solidarity with a ship in danger is indisputable and necessary. This is why assisting shipwrecked people is an obligation for everyone at sea recognized by the Council of State and in international law. This action is free and is considered a rescue when it comes to helping people. If a person does not meet this obligation to rescue at sea, they may be penalized in the same way as an offense of non-assistance to a person in danger which can lead to 2 years of imprisonment and a fine of 3700 euros.
On the other hand, assistance to save the property of a ship is not compulsory and is rather part of the logic of solidarity between seafarers. It can still be remunerated. Article L.5132-3 of the Transport Code also indicates that “handling operations which have had a useful result entitle the person or persons who provided the assistance to compensation. [However…] no payment is due in application of this chapter if the assistance operations have not had a useful result”. Two situations are then possible: assistance and towing.
What is the difference between assistance and towing?
In maritime law, assistance and towing are two distinct notions that will not have the same consequences.
Towing is defined as “the action by which the captain of a towing vessel agrees, at the request of the towed vessel, to provide the direction and control of a vessel which is deprived of the ability to maneuver independently”. It will then give rise to a service contract which will lead to a remuneration negotiated between the two parties. Some insurance contracts provide for the coverage of a possible towing.
Conversely, assistance corresponds to the action taken by a ship to assist another ship in danger of getting lost. It is through this condition of danger that towing and assistance will be differentiated. No matter where the ship is, as soon as it is no longer in control of its maneuver and cannot be repaired by its own means, it will be considered to be in a situation of danger.
Assist yes, but for how much?
Like towing, assisting people in their shipwreck can give rise to remuneration.
To be awarded remuneration, the assisting vessel must first request acceptance of this assistance contract. In the event that a call for help for assistance is explicitly launched (Mayday call), there will be no doubt about the possible remuneration. If this call has not been made, the payment of the remuneration will be subject to the acceptance, explicit or not, of the assistance. To express their refusal, the recipient must say so explicitly. In the event of silence, it will be presumed that he has accepted his assistance.
There is, however, an exception to this principle: when relief is unreasonably refused, assistance may be imposed.
What about the possible contract?
The assistance can then be validated by an assistance agreement whose clauses will be decided by the two parties. Standard agreements exist such as Lloyd’s open form, known as LOF 2000.
In the event that the agreement is concluded before or during the operations, only the first element of the contract will be validated, namely the agreement of will between the assisted and the assistant. The other elements of the contract, such as the type of assistance provided, its duration and the amount of the remuneration, cannot be fixed at the time of the conclusion of the agreement.
If the assistance agreement is concluded after the operations, then the terms and the amount of the remuneration will be directly fixed. The parties will therefore have to stick to it, unless this agreement is qualified as unfair or abusive by the judge. In this case, the latter may modify or cancel the agreement.
It also happens that no assistance agreement is concluded. In this case, the remuneration may still take place but must be legal.
How to calculate the amount of remuneration if it has not been fixed?
In all cases, the amount of remuneration will vary greatly depending on these assets and their condition. It is the rule of “no cure no pay”, no useful result, no remuneration.
If no agreement has been concluded, or if it has been deemed unfair or abusive, the judge will set the remuneration in accordance with the legislative criteria.
Article L.5132-3, I of the Transport Code provides that “handling operations which have had a useful result entitle the person or persons who provided the assistance to compensation”. This benefit aims to reward the person for the service rendered to the assisted.