General Average: Development and Characteristics of the Institution

As of today, maritime transport accounts for over 80% of global cargo turnover¹. Despite technological advancements, it remains associated with numerous risks such as grounding, collisions, and piracy. In light of this, maritime law requires institutions aimed at mitigating and allocating risks arising from emergencies at sea. One such institution is general average, the purpose of which is the equitable distribution of risks among the participants in a maritime adventure².

General average, recognized in many legal systems, remains a relevant institution to this day. It covers a wide range of maritime incidents. One of the most illustrative examples of general average is the jettisoning of cargo from a vessel during a grounding: in order to ensure that the vessel completes its voyage, the master must take extraordinary measures, sacrificing the cargo owner’s property. As a result, the cargo owner incurs losses, which are distributed among all participants in the maritime adventure, provided that the conditions of general average are met. However, general average is not always associated with the sacrifice of property. For instance, situations such as expenses incurred for the rescue of the vessel (Article 291 of the Merchant Shipping Code (hereinafter referred to as “MSC RF”³)) or expenses for the vessel’s entry into a port of refuge (Article 286 of the MSC RF) also fall within the scope of general average.

The principal international source governing general average is the York-Antwerp Rules. These rules, which embody international customs, are widely applied since they are often incorporated into charters, bills of lading, and marine insurance policies⁴. The York-Antwerp Rules are periodically reviewed by the Comité Maritime International (hereinafter referred to as “CMI”)⁵, with the most recent revision adopted at the New York Conference in 2016⁶.

During the Antwerp Assembly in 2022, the CMI adopted Guidelines on the fundamental principles of general average. In these Guidelines, the CMI once again emphasized the important role of the general average institution in maritime law, both for the participants in maritime adventures and for insurers⁷.

The purpose of this article is to conduct a detailed analysis of the concept of general average and to identify its key characteristics. The study examines the development of the general average institution as well as the circumstances under which it may be declared.

1.1. The Genesis of the General Average Concept

General average is one of the oldest institutions in maritime law⁸. The approach to the concept of general average is traditionally taken from the etymology of the word “average”⁹.

While the etymology of the word “average” in the context of general average has not been conclusively determined, several prevailing theories exist. The most common view is that the word originates from the Italian avere or averia, meaning “to have a property”¹⁰. Over time, the concept came to denote expenses or losses¹¹. The term andare a varea was also used in the Adriatic Sea, meaning “to pay a contribution”, i.e., a contribution or share¹². For example, in the Ancona Statute of 1397, the word varea referred to a contribution¹³.

A less widely accepted view holds that the word derives from the Arabic awār – damage, which later evolved into awārīa, possibly referring to damaged goods¹⁴. This Arabic origin of the word “average” was likely adopted by Soviet authors¹⁵ (cf. the Russian word “авария” [avariya], meaning “accident” — phonetically close to awārīa).

The two theories outlined above suggest that the word “average” has an independent origin, distinct from the modern concept of “accident”, and was originally used to denote shared property (contributions) or losses resulting from the loss of such property.

The subsequent sections of the article will describe the development of the general average institution, which will be provisionally divided into three parts: (1) the origin of the institution and the Middle Ages; (2) its development within the English legal system; and (3) its unification under the York-Antwerp Rules.

The Origins and Development of the Institution up to the 17th Century

The general average institution emerged over three to four thousand years ago. The earliest known written reference to general average dates back to the 6th century and appears in the Digest of Justinian, which contains the following provision¹⁶:

The Rhodian law decrees that, if goods are thrown overboard to lighten a ship, all shall make good by contribution that which has been given for all¹⁷.

It is believed that the maritime law underlying this provision may have existed as early as the 9th century BCE. The New Testament describes how, while Saint Paul was being transported to Rome as a prisoner, his ship was wrecked off the coast of Malta. In the Acts of the Apostles, it is mentioned that the ship’s master, after consulting with the merchants, ordered that all the tackle be jettisoned, although this did not ultimately save the vessel¹⁸.

The idea of collective distribution of losses, as described in Justinian’s Digest, was not limited to maritime law and may have been practiced much earlier. Institutions similar to general average existed among Chinese merchants around 3000 BCE. Likewise, for example, losses inflicted by desert bandits on the caravan trade were distributed equally among all merchants in accordance with the Laws of Hammurabi around 1760 BCE¹⁹. However, the general average institution developed further and was applied exclusively in the field of maritime law²⁰.

It should be noted that the Digest does not articulate an abstract principle but rather describes a specific situation of cargo jettison and its consequences. Nevertheless, it is believed that this provision was widely applied and served as an illustration of a general principle applicable to all cases of voluntary expenses incurred for the common good²¹.

The principle described above leads to the conclusion that there was a rule whereby multiple parties contributed to compensate for losses incurred in pursuit of a common goal. Furthermore, the rule was universal in nature and applied regardless of the sailors’ nationality²².

The definition described in Justinian’s Digest embodies the principle of fairness and the idea of collective loss distribution. However, what was the nature of this institution at that time? Presumably, the obligation arising from general average was based on the contract locatio conductio²³. This follows from the fact that the provision cited in the Digest is found in sections concerning contracts between shippers and merchants, such as locatio conductio and receptum nautarum²⁴. The compensation claim could be brought before the master, who would then file a lawsuit against other participants in the maritime adventure²⁵. By assigning the ex locato claim to the party suffering losses and the ex conducto claim to the master, a logical explanation emerges as to why two shippers, not bound by any contractual relationship, could nonetheless share losses between them²⁶.

The definition provided in Justinian’s Digest was later developed in various European compilations of maritime law. The Rolls of Oléron, a collection published in Northwestern Europe in the 12th century, included a provision resembling the principle of general average²⁷. It states that if a ship caught in a storm at sea cannot be saved without jettisoning cargo, the master has the right – with the consent of the other participants – to jettison part of the cargo in order to save the vessel. The losses incurred due to the jettison are shared among the merchants and may also be divided between the ship or the cargo at the master’s discretion²⁸. A similar situation is described in cases when it becomes necessary to cut off a part of the ship (for example, the mast) in order to save the maritime adventure²⁹.

The provisions of the Rolls of Oléron are particularly noteworthy, as they illustrate a situation in which the parties enter into an agreement “on the spot”: in a moment of danger, the master informs the merchants of the threat and the need to jettison the cargo, to which they must give their consent³⁰. Such a situation is difficult to imagine in the modern world, as in those days, cargo owners traveled with the ship and could indeed influence the master’s decisions³¹. It is worth noting that, according to the text of the Rolls of Oléron, if the merchants refuse to consent to the jettison in a dangerous situation, but the master deems it necessary to act for the salvation of the vessel, he still has the right to take emergency measures, which will also result in the distribution of losses among the participants³². This provision shows that unanimous consent is not requiredwithout the conclusion of a clearly expressed agreement, the master has the right to jettison part of the cargo, which will also lead to losses being treated as general average.

The provisions of the Rolls of Oléron were later adopted by many European laws, including those of Visby, Amsterdam, and Catalonia³³.

In 1681, the Ordinance of Louis XIV was enacted, which departed from the previously accepted definition of general average and broadened its scope: it came to encompass not only losses incurred while the ship was in danger, but also expenses borne after the danger had passed in order to ensure that the vessel completes its voyage safely³⁴. This definition began to be used in similar formulations by nearly all European countries³⁵. These provisions were also included in the Napoleonic Code³⁶.

It is important to note that the concept of general average developed as a subset of the broader concept of “average”, which is traditionally divided into general and particular. The key distinction lies in the fact that general average losses arise in the interest of all parties involved in the maritime adventure, and all participants contribute to their compensation. In contrast, particular average losses are borne solely by the specific owner of the damaged property³⁷. For example, the Ordinance of Louis XIV explicitly distinguishes between general average (avaries grosses et communes) and particular average (avaries simples et particulières)³⁸. The defining criterion for qualifying losses as general average was whether the losses were incurred for the sake of common safety³⁹.

The first legal treatise dedicated to the concept of average was Tractatus de Avariis, written by the Zeelander jurist Quentin Weitzon. In it, he provided a definition of general average and distinguished it from other types of average⁴⁰. This definition was widely used in Europe throughout the 17th and 18th centuries⁴¹. It is notable for emphasizing the voluntary nature of the action that ultimately caused the damage:

Average is the common contribution of the things found in the ship in order to make good the damage voluntarily inflicted upon items, whether belonging to merchants or the ship, so that lives, ship, and the remaining goods may escape unscathed⁴².

Development of the Institution within the English Legal System

The second, equally important line of development of the concept of general average can be traced back to England, where the institution initially developed through case law and was later codified⁴³.

The first modern definition of general average was given by the English judge Lawrence J. in the case of Birkley v Presgrave (1801) 1 East 220. According to this definition, all losses resulting from extraordinary salvage efforts or expenses necessary for the preservation of the vessel or cargo shall be distributed proportionally among the interested parties⁴⁴. This definition was later adopted and used in several English cases: Covington v Roberts (1806) 2 B. & P.N.R. 378, Job v Langton (1856) 6 E. & B. 779, and Svendsen v Wallace (1884) 13 Q.B.D. 69⁴⁵.

Initially, general average was described in English case law as an obligation grounded in the principle of distributive justice — the notion that if actions are undertaken for the sake of common safety, it would be unfair for one party to bear the losses alone⁴⁶.

The definition given in Birkley v Presgrave (1801) 1 East 220 was later enshrined in the English Marine Insurance Act 1906 and reads as follows:

(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 imperiled in the common adventure⁴⁷.

Researchers note that the concept of general average as a legal norm corresponds to the idea of fairness – that is, it imposes as a legal obligation what would be considered a fair transaction if the parties had made one⁴⁸. The meaning lies in the fact that a maritime adventure is always a very risky activity. Several parties are interested in preserving its integrity and completion. Therefore, it is reasonable to distribute among all the interested parties a contribution for compensating certain damage incurred by one party to reduce the overall losses.

In the case of Montgomery v Indemnity Mutual Marine Insurance Co [1902] 1 K.B. 734, the judge of appeal noted that the purpose of maritime law is to grant the vessel’s master absolute freedom to make any sacrifices he deems best to prevent maritime dangers, without regard to whose property he is sacrificing⁴⁹. Thus, general average also serves to relieve the master of the vessel of the burden: he does not have to analyze whose property he will be sacrificing to save the vessel, as the losses will be distributed among all interested parties in the maritime adventure.

Furthermore, general average facilitates the distribution of risk among different cargo owners. For example, one owner’s cargo was placed on the upper deck according to loading rules, making it the quickest and most convenient cargo to jettison in order to save the maritime adventure. General average ensures that the interests of cargo owners are aligned in such a situation, so it does not matter to them whose cargo is sacrificed to save the vessel⁵⁰.

Unification under the York-Antwerp Rules

We now turn to the next stage in the development of the general average institution: its unification under the York-Antwerp Rules⁵¹. In 1860, a conference was held in Glasgow aimed at achieving worldwide unification of general average rules⁵². As a result, the York-Antwerp Rules were adopted. It should be noted that modern Russian legislation directly refers to the York-Antwerp Rules and allows for their subsidiary application in cases where the applicable law does not fully regulate issues of general average (paragraph 2 of Article 285 of the MSC RF)⁵³.

In the 1924 edition of the York-Antwerp Rules, Rule A provides the following definition of general average, which is still used in their latest editions⁵⁴:

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.

This definition closely resembles the one found in the English Marine Insurance Act 1906. This is not coincidental, since the Drafting Committee that prepared the York-Antwerp Rules relied on the English definition as a model, although some modifications were made to its wording⁵⁵.

The 1924 version of the York-Antwerp Rules was adopted in the USSR as early as 1925 by Order No. 6749 of the People’s Commissariat of Railways and the People’s Commissariat of Justice of the RSFSR⁵⁶. The definition based on the York-Antwerp Rules was subsequently enshrined in Article 142 of the 1929 USSR Merchant Shipping Code⁵⁷. This definition was retained in the 1968 USSR Merchant Shipping Code (Article 232)⁵⁸. The modern definition of general average in the Russian Federation is almost identical to the definition in the York-Antwerp Rules and is found in Article 284 of the MSC RF⁵⁹:

General average is recognized as losses incurred as a result of intentionally and reasonably made extraordinary expenditures or sacrifices for the common safety to preserve from common peril the property involved in a common maritime adventure – vessel, freight, and cargo carried on the vessel.

It is worth noting that the Inland Water Transport Code of the Russian Federation (hereinafter referred to as “IWTC RF”) contains a similar definition in Article 140⁶⁰. In the MSC RF definition (as well as in the definitions found in Rule A of the York-Antwerp Rules and the IWTC RF), the following elements form the modern concept of general average, which will be further analyzed:

1. Intentional actions.

2. Reasonable actions.

3. Extraordinary sacrifice or expenditure.

4. For the common safety to preserve from common peril.

5. Provided there is a common maritime adventure.

Thus, general average is an ancient institution with its own history of development. The original concept of general average, which emerged several millennia ago, laid the foundation for the further development of the institution. It is remarkable that the institution has not changed significantly over the centuries and has remained in the form close to its early iterations. General average has always been applied as an independent and self-contained legal mechanism, and throughout its history, no other private law institution has emerged that could fully replace its functions and consequences.

1.2. Criteria for General Average

The concept of general average is typically revealed through the criteria of this institution outlined in its definition. These criteria will be analyzed in sequence below.

1. Intentional Actions

Debates arose over the use of the word “intentional”, particularly during the 1924 Stockholm Conference dedicated to the new edition of the York-Antwerp Rules⁶¹. These discussions stemmed from the fact that the definition in the English Marine Insurance Act uses the word “voluntary” rather than “intentional”. Some participants argued that the word “voluntary” implies various and ambiguous interpretations, while the word “intentional” suggests a greater decisiveness on the part of the person taking extraordinary actions, making it more appropriate for the definition of general average⁶².

The issue is that actions taken under general average always occur in situations where property is threatened by danger. Can the actions of a person facing danger be considered voluntary? In his Nicomachean Ethics, Aristotle distinguished between voluntary and involuntary actions: involuntary actions are those caused by force, whereas voluntary actions imply choice and critical consideration by the individual before acting. However, Aristotle also identified mixed actions — those that may appear voluntary but are, in fact, forced. An example of such mixed actions is the jettisoning of cargo during a storm⁶³.

It was probably this ambiguity in wording that led to the inclusion of the word “intentional” in the York-Antwerp Rules. An intentional act undoubtedly denotes an action involving a conscious choice by the individual. It also encompasses situations where actions were taken in response to force-majeure circumstances. At the same time, the term “voluntary” is hardly applicable to the aforementioned situations. Nonetheless, in practice, there is little difference between the requirements of English law and those of the York-Antwerp Rules⁶⁴.

An illustration of this criterion can be found in the English case Athel Line Ltd v Liverpool and London War Risks Insurance Association Ltd [1944] K.B. 87. In this case, a vessel sailing in convoy received orders from a naval officer leading the convoy, acting under Admiralty instructions, to return to the port from which it had departed. As a result, the vessel lost six days of its voyage, and a claim was made for general average compensation for the additional fuel and stores consumed. However, the claim was denied because the expenses were incurred through blind and unjustified obedience to the legitimate orders of a superior authority, which did not meet the criterion of intentional action⁶⁵.

Thus, intentionality implies that the action must be taken with the sole purpose of protecting the endangered interests and must result from the master’s independent decision – that is, it is not assumed that the master is simply following orders from higher authorities. An intentional action should result from the application of reason and discretion aimed at solving a specific problem of saving the vessel and cargo⁶⁶.

It is important to answer the question of why this criterion is necessary. Why must the individual’s actions be intentional? This criterion is essential for distinguishing the losses attributed to general average from those incurred accidentally. If the losses arise accidentally and are not caused by intentional actions, the parties will be liable independently – in this situation, the rules of particular average apply. For example, in the General Average Adjustment for the German steamer Ascania, the adjuster distinguishes between accidental losses and intentional losses. A blow to the steamer by an underwater rock is considered an accidental action, the losses of which are attributed to particular average. At the same time, the losses from grounding the steamer and hiring a salvage steamer are intentional, so they are attributed to general average⁶⁷.

Should the intention come from the master specifically? Or can actions leading to general average be taken by crew members or, for example, the shipowner’s office? During the drafting of Rule A of the York-Antwerp Rules, there was a proposal to supplement the provision with the phrase “by the master or his representative.” In that case, the interpretation would imply that only the master or his representative, and no one else, could take the actions. However, this idea was not implemented, leaving room for interpretation of the rules to mean that actions taken by crew members may also result in general average⁶⁸.

The position that actions do not necessarily have to be taken by the vessel’s master is also supported by case law. In Australian Coastal Shipping Commission v Green [1971] 1 Q.B. 456, general average was held to include losses resulting from a decision made by the shipowner’s office⁶⁹.

It should be noted that if the master opposed the actions but they were nonetheless carried out by others, this may indicate that the sacrifice was not absolutely necessary, thereby complicating the burden of proving its necessity⁷⁰.

It is also important to understand that in modern shipping, the master is always in communication with the shipowner’s head office. Therefore, in critical and emergency situations onboard, constant communication is likely to occur, making the question of who precisely initiated the actions leading to general average less relevant⁷¹.

2. Reasonable Actions

The reasonableness criterion is determined by what the master deemed appropriate under the circumstances existing at the time the act giving rise to general average was performed⁷². Reasonableness means achieving the most beneficial result while causing the least harm to the participants in the maritime adventure⁷³. The purpose of this criterion is to ensure that the interests of the participants in the maritime adventure are not adversely affected by unqualified actions by the master or other decision-makers regarding extraordinary expenses⁷⁴.

In the case Mitsui & Co Ltd v Beteiligungsgesellschaft LPG Tankerjlotte mbH & Co KG [2016] EWCA Civ 708 (The Longchamp), a fairly flexible interpretation of the reasonableness requirement under the York-Antwerp Rules was applied. In that case, a tanker was seized by Somali pirates. The pirates initially demanded a ransom of $6 million, but negotiations reduced the amount to $1.85 million. The English Court of Appeal stated that reasonable actions could include paying the original ransom amount if such an action were the safest, most effective, and timely means of securing the vessel – and therefore reasonable within the meaning of the rules⁷⁵.

Based on the criterion of reasonableness of the incurred sacrifice, the parties required to contribute to general average may be entitled to a reduction in the amount they must pay⁷⁶. When determining what amount is reasonable, the behavior of the shipowner or master must be analyzed. For example, in the case The Gratitudine (1801) 3 C. Rob. 240, the master pledged the vessel and cargo to a moneylender on the most burdensome terms. However, since he had no practical alternative but to accept the terms of the contract, the actions were deemed reasonable, and the resulting losses were attributed to general average⁷⁷.

3. Extraordinary Expenditure or Sacrifice

The extraordinary criterion means that if the actions arise from ordinary measures taken in fulfillment of the carrier’s obligations under the contract of carriage, the resulting expenses cannot be attributed to general average⁷⁸. General average considers and includes only those expenses that would not have been incurred during a normal voyage⁷⁹. This demonstrates that general average applies exclusively with emergencies⁸⁰.

Any maritime activity carries risks, making it necessary to distinguish extraordinary situations from ordinary maritime risks. An illustration of this distinction can be found in the case Covington v Roberts (1806) 2 Bos. & P.N.R. 378. In this case, the vessel Nancy was captured by a French privateer, but due to a storm, the privateer was unable to board her. The master of the Nancy, in an attempt to escape, hoisted the sail, which came under strain and resulted in the breaking of the mainmast.

The judge held that there could be no general average, as these actions fell within the scope of ordinary maritime risk – and nothing of the sort would have happened had the weather been more favorable⁸¹.

4. Common Safety and Preservation from Common Peril

The criterion was also the subject of discussion at the Stockholm Conference. The question raised was: should there be exclusively common peril, or can an action taken in the common interest be considered sufficient? At the conference itself, none of the participants spoke in favor of applying the broader criterion of interest⁸².

In English law, the practice has developed so that general average covers situations of common safety⁸³. Meanwhile, in continental legal systems, emphasis is placed on the criterion of common benefit or shared interest⁸⁴. The difference lies in the fact that, under English law, general average encompasses actions necessary to bring the common maritime adventure to a place of safety, along with the losses directly resulting from those actions. However, it does not cover further actions necessary for the safe continuation of the maritime adventure. The latter is covered by the concept of common interest. As a result, the continental tradition is more favorable to the shipowner, as the shipowner would otherwise be responsible for covering expenses necessary for the continuation of the maritime adventure⁸⁵.

In the CMI Guidelines, it is clarified that the York-Antwerp Rules cover both situations of common safety and common benefit. The latter refers to expenses necessary to allow the vessel to resume its voyage safely. For example, costs for unloading cargo or essential repairs to the vessel⁸⁶. Why does this work this way if the literal wording of the rules speaks of common safety? This is due to the fact that the York-Antwerp Rules contain both literal and numerical provisions, the latter addressing specific situations of general average⁸⁷. According to the Rule of Interpretation in the York-Antwerp Rules, the numerical rules take precedence over the lettered rules. Some of these numerical rules cover situations related to common interest, which is why general average can arise in cases of both common peril and common interest⁸⁸. For example, in the MSC RF, actions undertaken for the common interest include expenses incurred for the movement of cargo, fuel, or supplies on board the vessel (Article 287 of the MSC RF) and expenses for temporary repairs to the vessel (Article 288 of the MSC RF).

Saving from common peril implies that such peril must be real and imminent – danger cannot be imaginary⁸⁹. But can peril be mistaken? Imagine a situation where the master reasonably believed there was danger and sacrificed some property to save the vessel from perceived peril. However, in reality, no such peril existed. A similar situation was considered in the case The Wordsworth (1898) 88 Fed. Rep. 313, where a U.S. court concluded that such a situation would still qualify as general average. A contrary decision was reached in England in Watson v Firemen’s Fund [1922] 2 K.B. 355, where the court ruled that losses incurred due to an erroneous, albeit reasonable, assumption of impending danger could not be attributed to general average⁹⁰.

The wording currently found in the York-Antwerp Rules and the MSC RF (“for the common safety to preserve from common peril”) suggests that these instruments also allow for situations in which the perceived peril ultimately proves to have been mistaken.

The concept of peril has also been examined in salvage cases. The Maritime Arbitration Commission (hereinafter “MAC”) has stated that the danger need not be immediate; a threat that provides reasonable grounds for requesting assistance from a salvor is sufficient⁹¹.

For example, in the case of the motor vessel “King Edgar”, the MAC, after analyzing all the circumstances surrounding the vessel’s grounding, concluded that although the vessel was not in immediate danger, the threat was sufficiently real to justify entering into a salvage contract and to support the salvor’s right to a salvage award⁹². This case law can also be applied to analyzing the concept of peril in the context of general average, as both institutions share similar principles and objectives — the preservation of the maritime adventure.

Thus, peril is understood as a situation that the master or another responsible party reasonably perceives as dangerous. At the same time, general average can include expenses incurred in the case of mistaken peril, provided the master had reasonable grounds to suspect the risk of peril. According to the York-Antwerp Rules and the MSC RF, the criterion of saving from common peril also extends to cases where actions are taken in the “common interest” — for example, expenses incurred for temporary repairs to the vessel.

5. Existence of a Common Maritime Adventure

While Rule A of the York-Antwerp Rules does not directly specify who participates in the common maritime adventure, the MSC RF clarifies this concept, stating that it includes the vessel, cargo, and freight. This wording aligns with English legal traditions, where the subjects are expressed as objects or property; however, it should be understood that this refers to the shipowner, cargo owner, and charterer.

It should be noted that the definition requires that the adventure to be maritime. This means that the institution of general average applies specifically to maritime transport and does not extend to land or air transport⁹³. A maritime adventure is considered complete once the cargo is unloaded at the port of destination. However, if the voyage is terminated for any reason at an intermediate port, the maritime adventure is deemed to be completed at that port⁹⁴.

In general average, there must be at least two distinct interests at risk of damage. This is another criterion that distinguishes general average from particular average⁹⁵. For example, in the English case Kemp v Halliday (1866) L.R. 1 Q.B. 520, the court held that the sacrifice must necessarily be made to preserve the property of more than one party⁹⁶. However, multiple interests may be held by a single person. Section 66(7) of the English Marine Insurance Act provides that if the vessel, freight, and cargo – or any two of these – belong to the same insurer, general average losses and contributions are to be assessed as if those interests were owned by different parties⁹⁷.

To illustrate a situation involving only one interest, Popova E.V. provides the following example: a vessel is transporting seafood that has begun to spoil. In order to preserve the cargo, the master diverts to the nearest port before completing the voyage. This does not constitute an act of general average, as only one interest — the cargo owner’s — is involved, and no other interests are at risk⁹⁸. However, if the vessel were carrying self-igniting cargo and deviated from its route to enter a port to secure it, the expenses would be attributed to general average. In that case, had the cargo ignited, the interests of both the vessel and the freight would have been affected⁹⁹.

Rule B of the York-Antwerp Rules (introduced in 1994 following the Sydney Conference¹⁰⁰) expressly states — and Paragraph 4 of Article 284 of the MSC RF reiterates — that a common maritime adventure also includes situations in which one or more vessels are towing or pushing another vessel or other vessels, provided that all are engaged in commercial activity.

Since three interests — the vessel, freight, and cargo — are involved in a maritime adventure, sacrifices typically affect one of them¹⁰¹. A classic example of a cargo sacrifice is the jettisoning of goods overboard to lighten the vessel. Another common scenario arises when, in order to extinguish a fire on board, it becomes necessary to flood the hold, thereby damaging the cargo and causing losses¹⁰².

The sacrifice of the vessel may be exemplified by the use of its components as fuel or by intentional grounding to avoid danger¹⁰³. Freight that was to be paid, but is lost due to the loss or damage of the cargo, is likewise considered a general average loss¹⁰⁴.

An important question is whether the entire sequence of actions must result in success. However, the definition of a general average act in Rule A does not require that any specific act, sacrifice, or expenditure be proven to have contributed to the ultimate success of the overall operation¹⁰⁵.

However, when reading Rule A together with Rule XVII of the York-Antwerp Rules, it must be concluded that the value of the contribution to general average is calculated based on the net real value of the property at the end of the adventure, at the port of destination. This means that if part of the common maritime adventure does not reach the port of destination, the valuation of the parties’ contributions becomes impossible, and consequently, the distribution of general average contributions cannot be carried out¹⁰⁶.

For example, in Chellew v Royal Commission on the Sugar Supply [1921] 2 K.B. 627, a vessel sustained hull and engine damage, and the master brought it into a port of refuge, incurring expenses that could have been attributed to general average.

However, after departing the port of refuge, a fire broke out, resulting in the total loss of both the vessel and its cargo. The shipowner’s claim against the cargo owners for reimbursement of the port of refuge expenses was dismissed, as the property of all participants in the maritime adventure had been lost¹⁰⁷. Therefore, for a general average claim to be valid, the actions taken must ultimately be successful in preserving the property.

Thus, all the elements that together constitute general average have been considered. A general average act must be initiated by the master or another authorized decision-maker, provided the action is both intentional and reasonable. Intentional actions are those that arise from the free and deliberate choice of the decision-maker. Reasonableness is assessed based on what the master considers appropriate under the circumstances, with the aim of achieving the most favorable outcome while minimizing damage. The actions must also be extraordinary — that is, they must go beyond the scope of routine measures associated with ordinary maritime risks. Additionally, such actions must be undertaken for the common safety. It is not required that the peril be imminent; if the master reasonably believes that danger is likely to arise, losses incurred as a result may still qualify as general average. General average may also apply in situations involving a “common interest”, where the immediate danger has passed, but certain expenses remain necessary to complete the maritime adventure. Finally, a key condition for attributing losses to general average is the existence of a maritime adventure involving more than one interest, such as the vessel, freight, and cargo, affected by the act. ■