Introduction
There are several scenarios other than berthing and unberthing that determine whether tug assistance is required in Argentina. Strong currents, narrow channels, shallow waters and sandbanks (which are constantly shifting) are the most common issues up-river in the Paraná River, while the strong winds from the Patagonia contribute to the challenges in the southern ports.
As noted in this article, vessels sailing in Argentinian water are exposed to unexpected and compulsory tug services that can be imposed either by circumstance or by law. Both scenarios can be avoided with preventive action considering the rules applicable to the assistance of tugs.
This article explores:
- the typical navigational challenges both at the densest area in the Paraná River waterway (with terminals alongside), and in terminals located south Argentina;
- the legal framework applicable to the use of tugs and the most common charter party clauses applicable to vessels loading grains and by-products; and
- the complex scenario wherein a vessel in distress requires the assistance of tugs, whether in a typical salvage situation or by order of the Coastguard.
The Paraná River serves as a good example of where a vessel might run into issues, and requires special consideration in charter party contracts. It is renowned for its strong current, shallow waters and sandbanks. These factors expose vessels to challenging conditions where safe navigation can be compromised both during pilotage passage or while berthing and unberthing. The two predominant risks are:
- the risk of grounding and the need of tugs for refloating the vessel; and
- the need for abrupt manoeuvres to keep the vessel on the navigational channel which can expose her to a sudden engine blackout.
If a vessel is grounded this normally means that the navigation channel may be obstructed due to its narrowness. Consequently, the Coastguard may order that navigation through the channel be suspended until a complete draught survey is conducted in the affected area. Worst-case scenario, the Coastguard may suspend the navigation of ships until the grounded vessel is refloated. The consequences are severe. A refloating operation may take several days, while other vessels up-river remain trapped with a high risk of becoming overdrafted should the water level decrease. This was a frequent scenario between 2019 and 2020 when several vessels had to be lightened by ship-to-ship operations following the groundings of vessels down-river.
Other than groundings, it has increased the number of cases of vessels facing engine failure or malfunctions while berthing and unberthing, mostly in circumstances where the employment of tugs are not requested by the local authority. Since most of the terminals located up-river have limited room for manoeuvring, the berthing and unberthing procedure relies mainly on the vessel´s power and ropes handling, occasionally above its operational and safety limits. Furthermore, vessels are normally manned with engine power limitation software that may compromise a successful operation up-river should the master and the pilot not discuss the maneuver well in advance.
When sailing outbound the vessel, once unberthed, must perform a 180-degree turn in a narrow channel while managing two-and-half- to three-knot current. The operation can be risky even with skilful pilots. For a successful operation without tugboats, pilots normally advise a full revolution per minute in the main engine, which may trigger software that limits the torque. This could lead to serious consequences (there have been reports of vessels drifting and colliding with other vessels down-river, both at a berth and at anchorage). Even if no damage is caused to other ships or facilities, and the vessel manages to safely anchor, it is likely that the Coastguard will order tugs to be on stand-by until Coastguard officers have completed an inspection. This inspection may take several hours or even days. In this scenario, vessels are forced to enter into a towage contract with limited bargaining power regarding costs.
Legal framework regarding use of tugs
Article 31 of the Navigation Act(1) states that the Coastguard will decide on the use of tugs in any port, taking into consideration the hydrography of the river. In this regard – through Resolution 1/74 – the Coastguard has made the use of tugs compulsory in the following ports (for further details please see, “Should the use of tugs be compulsory for berthing at San Lorenzo?“):
- Buenos Aires;
- Bahia Blanca;
- Campana;
- La Plata;
- Quequén; and
- Villa Constitución.
In contrast, there is no requirement for tugs for mooring operations in the following ports:
- Ramallo;
- Rosario;
- San Lorenzo (except a few terminals);
- Puerto General San Martin; and
- Timbues.
These five ports host nearly 40 port terminals. More than 75% of dry and wet commodities exported from Argentina are shipped from these ports. They are also where most instances occur of vessels running aground or performing dangerous manoeuvres.
Other circumstances in which the Coastguard orders compulsory use of tugs are linked to safety issues and whether the vessel is actually in danger or potentially in danger. There have been reported cases of the Coastguard requesting tugs to escort vessels that have lost one of their anchors, or that had winch issues.
The most frequent scenario determining the use of tugs is a grounding in the Paraná that results in a salvage situation.
Argentina is party to the Convention for the Unification of Certain Rules of Law respecting Assistance and Salvage at Sea from 1910 and their rules are fixed by the Argentinian Navigation Act. This Act expressly states that a tugboat owner and crew assisting a vessel in distress are entitled to a reward if their salvage services merit this.
Reaching a salvage agreement beforehand is very important. In the absence of a pre-existing agreement, remuneration will be fixed by the federal court according to each case. The Act recognises the right to remuneration equal to the vessel’s value, the cargo value, and the freight earned. For example, if the vessel in peril was a Panamax loaded with soya beans, the claim for remuneration could rise above $50 million. Negotiations could be more fraught in situations where time is of the essence, such as in the South Atlantic Ocean. Conversely, the Paraná has a soft sand bottom and thus the ship’s hull is not exposed to damages. In fact, cases of vessels suffering damages up-river, were due to rudder misalignment caused by grounding.
While tugs could mitigate potential operational issues up-river in the Paraná, the debate on whether they should be compulsory for berthing and unberthing in the Paraná makes sense. However, the debate is resisted by many private port terminals owned by shippers and charterers who view tug usage as a risk. This is because new players, such as the Maritime Workers Union, could get involved in the terminal’s operations. Consequently, shipowners, who rely on local regulations, must balance the costs of the tugs and the safety of the operations.
From a time-charter’s perspective, the owner would normally remain responsible for the acts of the pilots and tugboats, with limited room for discussion. From a voyage charter’s perspective, most charter parties include clauses indicating that costs resulting from the negligence of the owners, the master or crew will be paid by the owner. However, this begs the question of whether an owner is negligent for incidents that happen while manoeuvring without tugboats where local rules do not require them. The Paraná River clauses will have to be reviewed to prevent compromising the safety of the vessels and its crew, and to balance poor regulations in one of the most congested ports in the world.
For further information on this topic please contact Francisco Venetucci at Venetucci & Asociados by telephone (+ 54 11 52783452) or email (fjv@venetucci.net). The Venetucci & Asociados website can be accessed at www.venetucci.net.