How have general average

concepts developed across

maritime countries and
jurisdictions ?

Prof. Dr. Didem A. Light

İstanbul Commerce University ,
Faculty of Law
1
General average is one of the oldest mechanisms
of maritime law, and has been handled, since the
middle ages, as a separate subject independent
from contracts for carriage of goods by sea and
maritime insurance law.

General average means sharing the damages and

expenses assumed for the common safety of the
vessel and cargo during a voyage in a
proportionate manner among the relevant parties
of the journey.

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General average is based on Rhodian Law, however no
written records exist from this era. The first written legal
instrument was created with Section II of «De Lege
Rhodia de Jactu» of Digesta, Book XIV, dated 533 AD.
This document refers to the principle that (Lowndess/
Rudolf, p.4)

«the loss to arise from the jettison of cargo for the

common safety will be covered by all parties»

This principle today mainly relates to the general average

rule which is called “jettison of cargo”.

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 These rules started to be implemented by Roman Law
in a unique manner starting with the settlement of
Rhodes in the Eastern Mediterranean basin. With the
decline of the Roman Empire, the regulations
governing general average were shaped by the
common law of the maritime area.

 The most important compilations related to general

average have been, since the 11 th century, «The Rules
of Oleron».

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 The Rules of Oleron contains three articles governing
average .( Lowndess/ Rudolf, p.4)

1- Components of general average for jettison of cargo

(article 8)

2- Cutting away the masts, the mooring cable and anchor

for saving cargo (article 9)

3- Adjustment of general average for jettison of cargo

among merchants (article 35)

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 In the 1270’s, «Farmannalog», which was a
condification of Norse Sea Law, various codes of the
Italian Sea Republics, «The Laws of Visby» which were
prevailing in Northern Europe , and the «Garagos Law
Book» in Iceland contained provisions related to
general average. ( Lowndess/ Rudolf, p.5)

 The «Consulado del Mare», which codified the

customary law of seafarers in the Western
Mediterranean starting from the 14th century, contains
similar provisions.

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 Ship and cargo owners seem to have preferred to
insure themselves against sea risks, which
emerged starting from the 14th century.

 The major maritime discoveries that started in the

15th century brought the vessel and cargo
partnership encountered in the middle ages to an
end.

 In the 16th century, «Guidon de La Mer» which is a

book on private law, included the definition of
general average. This book was considered a
guideline, and also handled other issues of
maritime law (e.g., freight, maritime loans, etc.)

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The «Ordonnance de la Marine», dated 1681, defines
general average in Article 7/2 as it is defined today.

These provisions were then incorporated into Napeleon’s

Commercial Code. From then on, countries began to issue
their maritime laws which included provisions governing
general average.

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In the UK and the US, unlike Continental Europe, no
legal regulations existed governing general average. As
the English law and practice, used since the early days,
the Rules of Practice of the Assocciation of Average
Adjusters were taken into consideration. On the other
hand, the Marine Insurance Act of 1906 included the
definition of general average in its Article 66/2.

“There is a general average act where any extraordinary

sacrifice or expenditure is voluntarily and reasonably made
in time of peril for the purpose of preserving the property
imperiled in the common adventure.”

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 The implementation of various national laws governing
the rules of general average caused differences
between English case law and Continental Europe
after the second half of the 19th century.

 These differences have become an important concern,

and initiatives began for integrating the rules of
general average in order to resolve the issue in the
international arena.

 In 1860, the first 11 rules which were determined in

relation to general average, were named “Glasgow
Rules” and studies started in 1864 for a project of
general average code, but these efforts have not been
successful. The rules were revised in 1877 and 1890.

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 In 1924, Lettered Rules from A to G which had a
nature of general provisions were added, and the
rules numbered in roman numerals were amended
and expanded in accordance with commercial and
technical requirements.

 The York-Antwerp Rules, which have been long

established , underwent revisions in 1950, 1974,
1990, 1994 and 2004 in line with the changes and
developments in the maritime and insurance
industries. Revision efforts are still ongoing for
the York-Antwerp Rules, which will be discussed
in detail today by distinguished lecturers.

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II.Implementation of General
Average
1. General :

 York-Antwerp Rules do not have an agreement nature.

 The Rules can only be recommended to be

incorporated to contracts of carriage and bills of lading
of the relevant parties.

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 In the international area, York-Antwerp Rules are
either incorporated into the national laws;

 by means of non-mandatory rules (e.g., French law,

Italian law, German law, US and English law, Dutch
law, Egyptian law)
Or
 by means of reference to these rules with an internal
provision.
(e.g., Sweden, Belgium, Norway, Denmark, China,
Turkey)

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The national laws of the US and Canada include
scattered provisions on general average and there are
no direct enforceable regulations. Thus, the “Rules of
practice of average adjusters” introduced aimed to
ensure unity.”

-Rules of Practice of the Association of Average

Adjusters of the United Kingdom

-Rules of Practice of the Association of Average

Adjusters of United States of America

Rules of Practice of the Association of Average

Adjusters of Canada

-Rules of Practice other than the Great Lakes

-Rhine Rules
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2. In Turkish Law and Practice

For the first time in Turkish law, general

average was governed by the Commercial
Maritime Law dated 1864, which was drawn on
the basis of the French Commercial Code of
1807.
The Commercial Maritime Law dated 1929,
which was produced during the Republican
era by the translation of the second book of
the German Commercial Code, which deals
exclusively with maritime law, contains
provisions governing general average.

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The Turkish Commercial Code which took effect in 1957
also contains provisions on general average. All these
provisions were drafted on the basis of the York-
Antwerp Rules dated 1950.

The New Turkish Commercial Code No. 6102 governs

general average in its Articles 1272 to 1285, and
provides that the York-Antwerp Rules must be referred
to for the purposes of implementation of general
average. This can be explained as follows:

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 Article 1273/1 provides that, unless agreed otherwise
by the parties, pro-rata sharing of general average is
subject to the most recent York-Antwerp Rules, which
was issued by the CMI and which was translated into
Turkish on the basis hereof.

 The translation of York-Antwerp Rules is prepared by

an expert committee to be founded by the General
Directorate of Insurance and Maritime
Undersecretariat, and the translation of the original
text is announced and published in the Official
Gazette.

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The amendments to be made to the York-
Antwerp Rules by the CMI are also translated
into Turkish through the same means, and are
published upon sua sponte application by the
relevant Undersecreteriats or real person and
legal entities.

Because of regulation by way of reference, the

Turkish Commercial Code does not govern the
issue of general average exhaustively.

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 In general, Turkish Commercial Code
regulates;
 the definition and components of general
average / Rule A
 the damages and losses attributable to general
average / Rule C
 substitution costs / Rule F

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 In addition, the Code also contains provisions
governing general average adjustment and its
procedure.

 It is accepted that shipowner is responsible

for having the general average adjustment
performed.

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 If the shipowner fails to fulfill this obligation,
any of the concerned parties including the
insurer is authorized to request such an
adjustment and have it performed.

 If no consensus is reached between the

concerned parties, the adjusters are
appointed by the court of jurisdiction where
the adjustment will be made.

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 The adjustment is made at the port of
destination, and if the vessel could not arrive
at that port, at the port where the journey
ended, by one or more than one adjusters to
be appointed by the concerned parties
unanimously.

 The general average adjustment report needs

to be certified by the court. This is because
the adjustment can be implemented only
upon a certification decision of the Court.

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 The concerned parties including insurers
may request the general average adjustment
to be approved, and may also file an
objection against the type of general average
or calculations.
 TCC Art .1279- 1280

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 The creditors indicated in the general
average adjustment report have rights
 maritime liens of the ship,
 right of detention on the goods to be
included in the pro-rata sharing of general
average,
 right of pledge on the freight against their
receivables
TCC Art. 1275

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As, York-Antwerp Rules do not contain any
regulation governing the performance and
implementation of general average adjustment.
These are governed by national laws.

In the current practice, it is clearly stated

where the adjustment will be made, which
law will apply, and the date of the applicable
York-Antwerp Rules which will be referred
to.

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 For example, a clause "G A in London / York-
Antwerp Rules 1994”.
In this case, the place where the adjustment will
be made will determine the governing law,
unless specified otherwise. Thus, the
mentioned clause indicates that the general
average will be implemented in London, that the
adjustment will be subject to the English law
and to the 1994 text.

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III. Interpretation

 The first paragraph of the “Rule of Interpretation”

which is the first Rule of the York-Antwerp Rules,
needs to be examined first in order to determine how
general average is adjusted.

 “Rule of Interpretation”
In the adjustment of general average the following
Rules shall apply to the exclusion of any Law and
Practice inconsistent therewith.
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 The purpose of the first paragraph of the Rules of
Interpretation is to ensure a unity in the
implementation of York-Antwerp Rules in the
international arena. York-Antwerp Rules, which
were incorporated into the agreement as a
condition, prevail over national non-mandatory
rules and practice, also known as general average
adjustment reports.

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 Therefore, unity will be ensured in the international
arena only if York-Antwerp Rules are implemented
regardless of the national rules of law and/or
practices in the jurisdiction where the general
average is adjusted.

Except as provided by the Rule of Paramount and the

numbered Rules, general average shall be adjusted
according to the lettered Rules.

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With the introduction of the Rule of Paramount into
York-Antwerp Rules in 1994, the order of priority for
implementation of the York-Antwerp Rules is as follows
:

Rule of Interpretation – Rule Paramount

Numbered Rules

Lettered Rules

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 Therefore, in case of inconsistency between a
Numbered Rule and a Lettered Rule, Numbered Rules
shall prevail over Lettered Rules pursuant to the Rule
of Interpretation.

 As a matter of fact, this conclusion may be based on

the fact that principles of general average apply to
particular special cases in order to ensure unity in
practice, with the Numbered Rules not affected by the
inconsistencies among the national law systems and
practices.

 The Numbered Rules provide general average

losses, damages and expenditures, such as :
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 Rule I : Jettison of cargo
 Rule II: Loss or damage by sacrifices for the
common safety

 Rule III: Extinguishing fire on shipboard

 Rule IV : Cutting away wreck
 Rule V : Voluntary stranding
 Rule VI : Salvage
 Rule VII: Machinery and boiler damage

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 Rule VIII: Expenses lightening A ship when A shore
and consequential damage
 Rule IX : Use of cargo, ship’s materials and stores for
fuel
 Rule X : Expenses at port of refuge
 Rule XI : Wages and maintenance of crew and other
port of refuge expenses
 Rule XII : Damage to cargo ın discharging
 Rule XIII : Deductions from cost of repairs
 Rule XIV : Temporary repairs
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Rule XV- Rule XXI are regarding general average
adjustments
 Rule XV : Lost of freight
 Rule XVI : Amount to be made good for cargo lost or
damaged by sacrifice
 Rule XVII : Contributory values
 Rule XVIII : Damage to ship
 Rule XIX : Undeclared or wrongfully declared cargo
 Rule XX : Provision of funds
 Rule XXI : Interest on losses made good in general average
Rule XXII: Treatment of cash deposits

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 IV. Elements of General Average
Rule A includes a definition of general average which
also sets forth its elements .
Rule A
There is a general average act when and only when any
extraordinary sacrifice or expenditure is intentionally and
reasonably made or incurred for the common safety for
the purpose of preserving from peril the property
involved in a common maritime adventure.
General average sacrifices and expenditures shall be
borne by the different contributing interests on the basis
hereinafter provided.
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 According to this definition, the components
of general average are:

1. Extraordinary sacrifice or expenditure:

For the presence of general average act, it is not
sufficient that the sacrifice is made for the
purpose of preserving from peril the property
involved in a common maritime adventure, but
also the loss or expenditure that has arisen
must have an extraordinary nature.

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The term “extraordinary sacrifice” referred to
in the text must mean sacrificing the property.

For example, jettison of cargo, or the loss

incurred by the machines during the attempts to
refloat the ship which is ashore, is an
extraordinary sacrifice.

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 “Extraordinary expenditure” is the expenditure
incurred for avoiding common peril. The losses
and damages which are the natural burden of
voyage may not be accepted as general
average.

For example, costs of hiring a trailer for towing a

vessel when ashore or costs of refuge are
extraordinary expenditure.

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2. Common Safety:
Another condition sought for accepting
expenditure or losses as general average is that
extraordinary sacrifice should have been made for
the purpose of preserving from a common peril
the property involved in a common maritime
adventure.
In other words, sacrifice should have been made
for the common safety. This is the key factor
which differentiates general average from
particular average.

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 With the concept of common safety, the
rule requires only the physical salvation
of the property for the purpose of
preserving the property from peril, and
does not require the voyage to be
successfully completed.

 In the case of total loss of the vessel and

cargo before the voyage is over, no
contributory value for general average
shall be paid.
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3) Peril:

The peril doesn’t have to be of a severity level which

will have an impact immediately or which will cause the
total loss of the vessel or cargo. It is sufficient that the
peril be actual and of a nature which may cause severe
damage to the vessel and cargo.

An example for this concept is the “The American

Farmer” (1947), 80 LIL. Rep. 672. case where the
captain of the vessel, which was damaged in the middle
of the Atlantic Ocean as a result of collision, asked for
help from the coast guard to be delivered by air.

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When aid was delivered, it was seen that the vessel had
been saved by two other vessels. The court decided that
not only the Coast Guard but also the other two vessels
were entitled to receive salvage remuneration for their
salvage effort.

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In the US, when identifying the severity level of a peril for
determining whether there is a general average act, the existence
of peril such as ;
 threatening peril
 threatening and seemingly unavoidable peril
 an imminent peril
 threatening imminent peril
 a peril close to physical damage
 an imminent peril threatening the whole

are sought in practice. ( Buglass, p.206)

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However, regardless of the severity of the peril, Rule A
requires only the physical salvation of the property for
the purpose of preserving the property from peril and
does not require the voyage to be successfully
completed.

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The conditions of peril and common safety should co-
exist. If the act was committed specifically for the purpose
of common safety while encountering peril, then there is a
general average act.

The peril must be of a common nature threatening the

vessel and the cargo. In other words, sacrifice or
expenditure made for avoiding the peril threatening only
the vessel or the cargo is not accepted as general
average.

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However, there are some exceptions to this in practice.
For example, there are some cases from US courts
which stipulate that general average rules may apply
also when the insured ship is in ballast condition or
without any contract of affreightment.

Potter v. Ocean Ins. Co ( 3 Summer 27) , “Dollar v. La.

Fonciere Compagnie (162 Fed. Rep. 563 ) ,

(Buglass, p.206)

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SAFE PROSECUTION - PERIL …

Also, in Rule X(b) and XI(b), where there is no “peril”

requirement for the claims which are made for general
average expenses at the port of discharge conditions,
safe prosecution has replaced “peril”.

As Buglass and Tetley expressed, this is general

average “by agreement” or “artificial general average”.
(Buglass, p. 198; Tetley, p. 25 )

(Eagle Terminal Tankers v . Insurance Co. of U.S.S.R

(Eagle Courier) 637 F.2d 890, 1981, AMC 137 (2nd. Cir.
1981) 51
4) Voluntary – Intentional and reasonable:

The general average act must be intentionally and

reasonably committed for the common safety for the
purpose of preserving the property from peril.

At this point, the captain must make a decision about

taking measures at his/her own discretion, the
consequences of which may be anticipated by the
captain, in order to save the vessel and cargo from the
peril involved. The captain may consult either the ship
owner or the insurer before making such a decision. This
decision is still accepted to be captain’s own decision on
behalf of the cargo and vessel’s joint interests.

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Thus, the decision of the captain for a general average act
will be binding also for the owners of the cargo. (e.g.,
intentional jettison of cargo for the purpose of preserving
from peril).

This act, which is committed intentionally, must not only

cause sacrifice, but must also preserve the property from
an existing peril. (Athel Line Ltd. V. Liverpool and London
War Risks Ins. Assn. Ltd (1944) ; The Seapoll (1934) P. 53 ,
(Lowndes/Rudolf, p.120)

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The sacrifice made intentionally must also be
reasonable.

What is meant by “REASONABLE” is that a taken

measure must be the most appropriate measure to be
taken for saving the vessel and cargo from peril, in other
words for avoiding the damage in full or in part.

Reasonableness of the general average act preferred and

implemented is measured according to the particular
facts of each case.

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 The condition of being reasonable is governed not
only by Rule A, but also by the Rule Paramount.

 Thus, the sacrifice and expenditure made, which are

not reasonable, may not be allowed as general
average pursuant to the Numbered Rules.

 In this case, the Rule Paramount provides that the

condition of being reasonable must be sought in all
cases for the decision made for the general average
act.

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 Buglass, L. :Marine Insurance and General Average in the
United States, 3. ed. 1991

 CMI Yearbook, 2014

 Hudson, G.: The York Antwerp Rules, 2 .ed. London 1996.
 Çetingil E./Kender R./Ünan S.: General Average, 2011
 Light, A. D.: York-Antwerp Rules 2004- General Average,
2. ed. ,2006

 Lowdnes/Rudolf: The Law of General Average and York-

Antwerp Rules, 12 Ed., (by. D.J Wilson/J.H.S. Cooke)

 Tetley, W.: General Average Now and in the Future,

www.tetley.law.mcgill.ca/maritime/law/genaverage.pdf.,1.1.2
005

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