Events of sea peril that give rise to general average & application of York-Antwerp Rule

 Events of sea peril that give rise to general average, must have valid ground of sacrifice as explained under lettered & numbered rules of York-Antwerp Rule.

Any damage of ship or cargo caused by any sea peril in maritime adventure cannot be considered as general average. We know that in a maritime adventure, there are three interests involved viz the cargo, the ship and the freight. General average sacrifice arises on any of these three interests.

Sacrifice of cargo

The most common example of general average sacrifice encountered in maritime adventure, is ‘jettison’. The situation of mere washing overboard any part of the cargo by swelling of wave, will not give rise to general average sacrifice. At the same time, if the crew throws cargo overboard out of malice, the incident is not recognized under general average act.

To give rise to general average contribution the cargo jettisoned must be stowed as per recognized custom of the trade. Generally it is not proper to stow cargo on deck as it is exposed to risk of damage during sea peril. If owner of deck cargo does not obtain prior consent of other interests in the adventure, his claim of general average contribution will not be entertained even if the cargo is jettisoned to avert sea peril. In a situation where the ship owner has agreed to receive the deck cargo, the ship and the freight has to contribute to the loss provided that the owner of jettisoned cargo is the sole owner. If it found that there are some owners of jettisoned cargo who have not consented for placing cargo on deck, then no contribution can be obtained from them.

If goods are stowed on deck without the shipper’s consent, the shipowner alone has to bear the loss by jettison because shipowner has violated the conditions of carriage for carrying them safely.

The York-Antwerp Rule holds the view about jettison of cargo as under:-

“No jettison of cargo shall be made good as general average unless such cargo is carried in accordance with the recognized custom of the trade. Moreover damage done to ship or cargo, or either of them, by or in consequence of a sacrifice made for the common safety, and by water which goes down to ship’s hatches opened for the purpose of making a jettison for the common safety, shall be made good as general average”.

Sacrifice of ship or tackle

In a situation where any sacrifice of the ship, her stores or tackle is necessary to avert a common danger, it will be treated as the subject of general average contribution. But it will not be deemed as a sacrifice of general average, if the same is carried out to fulfill shipowner’s contractual responsibility to carry the goods safely to the destination port. Generally all ordinary losses sustained by the ship during voyage, is to be borne by the shipowner. But sacrifice to meet the particular & exceptional emergency, such as loss of the ship’s tackles for unusual purpose in order ensure her safety in difficult circumstances, will be admitted under general average contribution. Similarly if spare parts are cut up for fuel to keep a pump running, their value will be considered as general average contribution. If measures are not taken to keep pump going on, it might cause ship to go down. But if the normal stock of tackle falls short to meet ordinary needs of the ship, the shipowner cannot legitimately claim for the loss of tackles destroyed to make up deficiency.

In a situation if the ship encounters danger of sinking, and the master deliberately runs her ashore for the purpose of saving the cargo and the ship, then the loss or damage to the ship will be treated as general average sacrifice.

The York-Antwerp Rule provides following explanation related to the loss of ship or tackle:

“When a ship is intentionally run on shore for the common safety, the consequent loss or damage shall be allowed in general average. Damage caused to machinery and boilers while ship is in shore facing peril position, if efforts are undertaken to refloat the ship for the common safety, then such damage shall be allowed in general average.

There may be a situation when a ship is ashore and cargo and ship’s fuel are discharged as a general average act, then all the extra costs such as lightening, lighter hire, reloading if needed, shall be admitted as general average.

In a situation when ship’s materials and stores are necessarily burnt for fuel for common safety at a time of peril, this loss has to be admitted as general average provided adequate supply of fuel is made available”.

Sacrifice of freight

When shipment terms are freight payable at destination, a jettison of goods involves not only sacrifice of goods themselves but also a loss of freight payable on those goods. Accordingly the person to whom the freight would have been payable, whether charterer or shipowner, is entitled to claim a contribution from the owners of the interests saved. For example a cargo loaded under terms freight payable at destination, is damaged under general average sacrifice and discharged at some intermediate port, then the cargo owner is to make general average contribution for the freight thus lost.

But if goods are shipped at freight payable in advance or pre-paid basis, it does not depend on the safe arrival of goods. Therefore claim to general average contribution in respect of freight cannot arise.

The York-Antwerp Rule has the following explanation to justify claim against sacrifice of freight:

Loss of freight arising from damage to or loss of cargo shall be admitted as general average, either when caused by general average act, or when the damage to or loss of cargo is made good. Deduction shall be made from the amount of gross freight lost, with regard to charges which owner has to incur to earn this freight.

 

Related Post:

  1. General Average – an overview
  2. Define Maritime Law & highlight the area/subjects dealt by the law
  3. International Maritime Organization-a specialized agency for safety in shipping and sea

 

 

 

 

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