General Average
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CHAPTER 4
Exceptions to Liability to Contribute
I Deck Cargo
4.1 Stowage of cargo on deck has traditionally been regarded as improper. It has been treated as a danger to safe navigation;1 “liable to be unduly jettisoned owing to the facility of doing it when cargo under hatches would not be”;2 such jettison being “a justifiable riddance of encumbrances which ought never to have been there, and not as a sacrifice for the common safety”.3 Accordingly, though the owner of deck cargo is liable to contribute if jettisoned deck cargo is preserved by a general average act, he is generally unable to recover a contribution for such jettison.4 In general, it makes no difference that the shipper has consented to deck carriage, though, if the cargo is stowed on deck without the owner’s consent, he is entitled to an indemnity from the carrier.5 However, contribution is recoverable where all those interested in the adventure consent to such carriage6 or where deck carriage is customary,7 which is of course in modern times often the case.8 The York-Antwerp Rules, Rule I now states that: “No jettison of cargo shall be allowed as general average, unless such cargo is carried in accordance with the recognised custom of the trade”.9Page 80
II Claimant’s Fault
4.2 Rights and liabilities to contribution are adjusted independently of the fault of the parties to the common adventure; but, where the necessity for general average arises from the fault of one of the parties and that fault is actionable at the suit of another party, the rights, remedies and defences between the two parties are preserved; in particular, the party not at fault is prima facie not obliged to pay contribution to the party at fault. 4.3 If the danger resulted from the fault of the claimant or of those for whom he is legally responsible and that would give the party from whom contribution is claimed a cause of action against the claimant, then the claimant loses his right to contribution from that defendant.10 Thus, in the leading case of Schloss v. Heriot,11 a shipowner was unable to claim contribution from cargo owners where his ship was unseaworthy at the beginning of the voyage and it was this unseaworthiness which occasioned the general average act. The position is similar where the loss arises from negligent navigation,12 where goods are jettisoned which have been wrongfully shipped in a dangerous condition and have occasioned the peril,13 or after an unjustifiable deviation which has not been excepted or waived.14 Once the claimant has discharged the burden of proving his entitlement to a general average contribution,15 the burden shifts to the defendant to prove that he isPage 81
Basis of the rule
4.4 It was once thought that, where fault necessitated the taking of steps to avert a peril, this took the situation out of general average, that it was not a case for contribution, and innocent parties should seek redress from the party at fault.17 This view has been rejected. General average losses are to be adjusted in the normal way, with allowance for contributions, but subject to the rule that the party at fault cannot claim what would otherwise be due to him.18 4.5 Speaking of the general law on contribution in Deering v. Earl of Winchelsea,19 Eyre CB said:If these were circumstances which could work a disability in the Plaintiff to support his demand, it must be on the maxim, ‘that a man must come into a court of Equity with clean hands;’ but general depravity is not sufficient. It must be pointed to the act upon which the loss arises, and must be in a legal sense the cause of the loss … There might indeed be a case in which a person might be in a legal sense the author of the loss, and therefore not entitled to contribution; as if a person on board a ship was to bore a hole in the ship, and in consequence of the distress occasioned by this act it became necessary to throw overboard his goods to save the ship.