Voyage Charters

Page 675

Chapter 20

General Average

Gencon 1976
11. General average 130
  General average to be settled according to York-Antwerp Rules, 131
  1974. Proprietors of cargo to pay the cargo's share in the general 132
  expenses even if same have been necessitated through neglect or 133
  default of the Owners' servants (see clause 2). 134
Gencon 1994
12. General average and New Jason clause 178
  General Average shall be adjusted in London unless otherwise agreed in Box 179
  22 according to York-Antwerp Rules 1994 and any subsequent modification 180
  thereof. Proprietors of cargo to pay the cargo's share in the general expenses 181
  even if some have been necessitated through neglect or default of the Owners 182
  servants (see Clause 2). 183
  If General Average is to be adjusted in accordance with the law and practice of 184
  the United States of America, the following Clause shall apply: "In the event of 185
  accident, danger, damage or disaster before or after the commencement of the 186
  voyage, resulting from any cause whatsoever, whether due to negligence or 187
  not, for which, or for the consequence of which, the Owners are not 188
  responsible by statute, contract or otherwise, the cargo shippers, consignees 189
  or the owners of the cargo shall contribute with the Owners in General Average 190
  to the payment of any sacrifices, losses or expenses of a General Average 191
  nature that may be made or incurred and shall pay salvage and special charges 192
  incurred in respect of the cargo. If a salving vessel is owned or operated by the 193
  Owners, salvage shall be paid for as fully as if the said salving vessel or vessels 194
  belonged to strangers. Such deposit as the Owners, or their agents, may deem 195
  sufficient to cover the estimated contribution of the goods and any salvage and 196
  special charges thereon shall, if required, be made by the cargo, shippers, 197
  consignees or owners of the goods to the Owners before delivery." 198

English law

20.1 The principle which underlies general average is that where any property at risk in a maritime adventure is sacrificed, or where extraordinary expenditure is incurred, for the common safety, the owners of any of the other property at risk which completes the adventure safely should contribute to the loss or expense, in proportion to the values of their property which has survived. In English law this principle has been codified in section 66 of the Marine Insurance Act 1906:

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    "66. General average loss. - (1) A general average loss is a loss caused by or directly consequential on a general average act. It includes a general average expenditure as well as a general average sacrifice.
  • (2) There is a general average act where any extraordinary sacrifice or expenditure is voluntarily and reasonably made or incurred in time of peril for the purpose of preserving the property imperilled in the common adventure.
  • (3) Where there is a general average loss, the party on whom it falls is entitled, subject to the conditions imposed by maritime law, to a rateable contribution from the other parties interested, and such contribution is called a general average contribution."

The Act is, of course, primarily concerned with the right of the owner of the ship, cargo or freight to be indemnified by his own insurer against general average losses or contributions. It has been held, however, that when general average is to be adjusted in accordance with English law, the provisions of the Marine Insurance Act apply as between the parties to the adventure - the owners of ship, cargo and freight - as well as between a party and his insurer.1 However, the principles set out in the Act may be excluded or modified by agreement between the parties, and this is the almost invariable practice by reason of the incorporation of the York-Antwerp Rules into the contract of carriage.

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