The first known statement of the law of general average is a small fragment of ancient Greek legislation, which forms the text for a chapter in the Digest of Justinian: “Lege Rhodia cavetur ut si levandae navis gratia jactus mercium factus est, omnium contributione sarciatur quod pro omnibus datum est”.¹ “The Rhodian law decrees that if in order to lighten a ship merchandise has been thrown overboard, that which has been given for all should be replaced by the contribution of all.” This short sentence contains both the principle and a perfect example of the peculiar communism to which seafaring men are brought in extremities. What is given, or sacrificed, in time of danger, for the sake of all, is to be replaced by a general contribution on the part of all who have been thereby brought to safety. This is a rule which from the oldest recorded times has been universal amongst seafaring men, no matter to what country they belonged, being obviously founded upon the necessities of their position.²

The legal definition of general average can be found in Chapter XVI of the Merchant Shipping Code of the Russian Federation, namely Article 284 “The notion of general average and principles of its distribution”. General average is a loss incurred 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, – the ship, the freight and the cargo carried by the ship.

At the international level, the unification of the general average and principles of its distribution was made in the York Antwerp Rules. The rules are not an international convention but a codified custom. The first attempt [to unify] was made at a conference held in Glasgow in 1860, and the York Rules were adopted in York in 1864. In 1877 they were revised in Antwerp and in 1890 were called the York Antwerp Rules.³

The York Antwerp Rules have been repeatedly revised by the International Maritime Committee and new editions adopted in 1924, 1950, 1974, 1974/1990, 1994, 2004 and 2016. Each new revision has attempted to balance the interests of the shipowner and the cargo owner, or more precisely the interests of their insurers, has taken into account developments in the industry as a whole and legal technology, and has attempted to address the problems and gaps identified in previous revisions.

The most recent revision, the York-Antwerp Rules 2016, was adopted by the Comité Maritime International (CMI) during its conference in New York. The 2016 Rules aimed to strike a balance between the interests of shipowners and cargo owners, addressing various concerns and providing greater clarity on matters such as salvage remuneration, environmental protection, and the treatment of expenses incurred in avoiding or mitigating General Average losses.

However, despite the solid age of the institution of general average (older than marine insurance), general average is a mystery to many.

A noteworthy story is that of a Russian lawyer who, on behalf of a shipowner, recovered the general averages expenditure in the Moscow Commercial Court. He recounted a dialogue he had had with the judge during the hearing. The judge in the preliminary hearing repeated the claim demands several times in bewilderment, trying to understand how that was possible: “You are the carrier, you undertook to deliver the cargo, your vessel ran aground due to a mistake of the master, the vessel was refloated, delivered to an intermediate port where the cargo was transshipped onto another vessel and delivered to the destination port with great delay, now you have brought a claim and are asking to recover from the cargo owner the amounts for salvage, for transshipment of the cargo and also for the amount of freight for delivery of the cargo to the port of destination by another ship despite the fact that the freight for delivery of the cargo by your ship was paid in full by the cargo owner in advance?”. After reviewing the legal regulations of general average, the amount due was, of course, recovered in favour of the shipowner.

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In an effort to make the complex system of general average (GA) more accessible to parties not familiar with the subject the CMI has, through its Standing Committee (SC) on General Average, produced the following handbook which, in its annex, also contains recommended standard security forms for general average cases. The Guidelines as well as the security forms have also been approved by the International Union of Marine Insurance (IUMI) and the International Chamber of Shipping (ICS).⁴

The CMI Guidelines Relating to General Average (hereinafter – Guidelines) are prepared for commercial parties to assist their understanding of the practice and basic principles of general average. They do not form part of the York-Antwerp Rules; they are not binding and are not intended to over-ride or alter in any way the provisions of the York-Antwerp Rules, the contracts of carriage or any governing law.⁵

The first edition of the CMI Guidelines was adopted by the plenary session of the 42nd International Conference of CMI in New York, May 2016, and ultimately approved by the Assembly of CMI.

In order to monitor the working and effectiveness of the CMI Guidelines, and to recommend changes to the Guidelines as circumstances dictate (which shall be submitted to the Assembly of CMI for approval), a Standing Committee was constituted to consist of a chairman nominated by the Assembly of CMI, a representative nominated by the International Chamber of Shipping, a representative nominated by the International Union of Marine Insurance, five additional members nominated by the Assembly of CMI.⁶

The Standing Committee was later extended by the CMI Executive Committee and currently comprises twelve members.

The Standing Committee reviewed the Guidelines and drafted wordings for general average security forms. Approval of the drafts was obtained from ICS, and IUMI. The present, second edition of the guidelines was adopted at the Assembly of CMI in Antwerp, October 2022.⁷ The Russian delegation at the CMI Assembly voted in favour of the CMI Guidelines Relating to General Average. The Guidelines are available at the CMI’s website⁸. Russian Maritime Law Association (RUMLA) is currently working on the translation of the Guidelines into the Russian language. ■

Overview prepared by Konstantin Krasnokutskiy