Five things you need to know about marine maintenance agreements

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Five things you need to know about marine maintenance agreements

When it comes to submarine cables, marine maintenance contracts are critical to ensuring the reliability and longevity of these vital communications links. Their importance becomes apparent when a cable fails, and the cable-laying vessel must be mobilised in a race against time.

Here are five important things to know about them:

1. Mention them in the consortium agreements

Usually in a Construction and Maintenance Agreement (C&MA) or in a Joint Build Agreement (JBA) for a cable consortium there is a provision that obliges the members to cooperate and act together to sign a marine maintenance agreement. This could be on a shared liability basis so that each member receives an invoice from the maintenance provider based on its pro rata share or the number of its respective fibre pairs. By doing so, the consortium members can agree to replicate the same liability scheme for this additional maintenance service agreement, thus facilitating negotiations with whichever provider is chosen for the maintenance. 

On the other hand, there should be other maintenance agreements related to the terrestrial segment of a cable system, which is a different market with specialized local providers.

2. Review the scope of any Cable Security Fleet or similar programme

In 2022, the United States implemented the Cable Security Fleet initiative, under which two U.S.-flagged, U.S.-crewed commercial cable ships are available for any cable repair in time of war or national emergency. It guarantees their availability on 24 hours' notice. Other governments may have similar programmes. During 2024 India conducted analysis with a view to having its own fleet, and the French state acquired Alcatel Submarine Networks.

So what would happen if such a cable-laying vessel was mobilized while en route to a maintenance event with a private company? Surely it would be diverted to attend to this government priority. Therefore, it is advisable to ask this question during the contract negotiations and to include a specific provision, thus avoiding surprises, even if the probability of their occurrence is low.

The cable maintenance service contracts usually contain provisions regarding the unavailability, major breakdown, total loss or absence of the cable ships, giving the provider the option of proposing an alternative cable ship. However, if none is available, or if the alternative vessel does not meet the requirements for carrying out the maintenance work itself, then it is time to activate the termination procedure referred to above.

3. List of Marine Operation Permits

These permits, authorizations, consents or licences relate to what is required to perform the maintenance services in connection with the operation of the cable ship and they include a wide range of issues such as those needed to enter jurisdictional waters for the vessel and crew authorizations/visas.

Typically, the maintenance service provider is responsible, at its own expense, for obtaining and maintaining such permits as may be required by any governmental authority with respect to a cable ship and its employees, agents and subcontractors.  

It is common for the local representatives of the cable owners to cooperate with these authorities, as there are usually documentation requirements regarding the specifications and ownership of the submarine cable that the local authorities need to know. This ensures an expeditious or cost-effective process for obtaining permits before the cable ship reaches Mile 201.

It is advisable to require the maintenance service provider to prepare a complete list of the marine operating licences required under each applicable law that it needs in order to provide its services in each jurisdiction. And such a list should be updated on a regular basis so that no time is lost during a vessel mobilisation.

Also, when conducting cable awareness campaigns, this is one of the issues that the cable owner should also check with all local authorities on the ground. Otherwise, they would be relying too heavily on a service provider who may not be familiar with local customs and practices and may be obtaining information from outdated official websites.

4. Allow cable owner representatives on board

It is advisable to establish a right for the cable owner to send at least two representatives on board so they can observe the repair operation and immediately answer any questions regarding cable system specifications and configuration. They will play an important role in favour of the carrier's interests by detecting any problems or delays during the subsea operations and by recording and reporting on the progress of an operation at sea.

In recent years, the number of volunteers has decreased due to international regulations that require each of these observers to take safety courses before boarding the cable-laying vessel. However, it is fair to say that this non-bureaucratic activity should be encouraged as it is truly an in-situ learning experience about the submarine cable industry.

To facilitate proper work and communication with the cable owners' headquarters, it is recommended that clear provisions be included in the agreement regarding the need to provide adequate accommodation of a standard not inferior to that provided to officers on board, as well as high-speed Internet access at no additional cost.

In addition, the cable owner should have the right to invite a naval officer from the local navy when investigating the cable failure in its jurisdictional waters. He would prepare a report on the operations to recover the damaged cable and cooperate in preserving its chain of custody as evidence to be presented in the national courts. Accordingly, the representative of the cable owner may also request from the maintenance provider any documentation such as statements, photographs, videos about the damaged cable.

5. Warranty 

The marine maintenance provider should warrant that the services and all materials provided will be free from defects for a period of at least one year after installation. It is also advisable to include a specific condition stating that if the service provider fails to remedy a defect, deficiency or failure, the cable owner may make the repairs itself or have them made by others at the service provider's expense.    

There is an important reason for this requirement. Some regulatory bodies impose obligations to mobilise a cable ship within a certain time, and it is the cable owner's priority to maintain its good regulatory status in order to avoid further negative consequences in a country affected by a cable failure. The negative consequences range from bad publicity to loss of political support and confidence when needing to renew the licence for other telecommunication services in that country. 

Other common causes of delay include lack of available cable spares in the cable owner's depot, lack of documentation to clear customs procedures for cable importation, adverse weather conditions, or delays in obtaining maintenance permits from various government agencies. While some of these causes are related to negligent behaviour of either the maintenance provider or the cable owners, others may be strictly related to force majeure events. Therefore, the daily reports of operations performed by the maintenance service provider for the cable owner should be carefully drafted, as they may be used as legal evidence by any local government to prove non-performance of the cable owner's regulatory obligations.

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Andrés Fígoli is the author of the book “Legal and Regulatory Aspects of Telecommunication Submarine Cables” and is the director of Fígoli Consulting, where he provides legal and regulatory advice on all aspects of subsea cable work. Mr. Fígoli graduated in 2002 from the Law School of the University of the Republic (Uruguay), holds a Master of Laws (LLM) from Northwestern University, and has worked on submarine cable cases for more than 20 years in a major wholesale telecommunication company. He also served as Director and Member of the Executive Committee of the International Cable Protection Committee (2015-2023).

This article was first published in Submarine Telecoms Forum Magazine #141 – March 2025.