Agreements Relating to General Average in Maritime Law

Entrance

In maritime law, one of the oldest and most fundamental concepts general average. This institution, whose history is almost as old as seafaring itself, is a solidarity mechanism that ensures the fair conduct of maritime transport.

In short, it is the sharing of extraordinary sacrifices and expenses among all stakeholders in order to avert a common maritime hazard faced by the ship and its cargo.

The Turkish Commercial Code (Articles 1272 et seq.) regulates general average provisions; furthermore, the York-Antwerp Rules have established uniform rules regarding general average in the international arena.

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1. Definition of General Average

According to Article 1272 of the Turkish Commercial Code, general average is:

“Freight is the sharing among the parties involved in the ship, cargo, and freight of extraordinary sacrifices or expenses reasonably and knowingly made to protect the ship or cargo from a common maritime peril during a sea voyage.”

The elements that emerge from this definition are as follows:

1. a shared risk .
2. The sacrifice or expense must be extraordinary.
3. Sacrifice should be made consciously.
4. The aim is to protect the ship and its cargo jointly.

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2. Historical Development of General Average

General average is one of the oldest concepts in maritime law. Similar provisions can be found in ancient Greek and Roman law.

In its modern sense, general average was standardized in international trade from the 19th century onwards with the York-Antwerp Rules . Today, almost every freight contract refers to these rules

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3. Terms of General Average

For a sacrifice or expense to be considered general average, the following conditions must be met:

• a common maritime hazard (storm, fire, grounding, etc.).
• The sacrifice must be extraordinary (e.g., throwing the cargo overboard).
• It must be conscious and voluntary.
• The ship should be built for the benefit of the cargo and freight.

For example, throwing valuable cargo overboard to save the ship is a typical case of general average.

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4. Types of Common Average

Some classic sacrifices and expenses considered under general average include:

• Jettisoning (dropping the cargo overboard).
• Water was used to extinguish the ship fire, resulting in damage to the cargo.
• Costs incurred to salvage the grounded ship.
• The extraordinary expenses incurred to seek refuge in the port.

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5. Consequences of General Average

When general average is declared, the sacrifices and expenses incurred are shared among the parties involved with the ship, cargo, and freight.

• The share ratiois determined according to the proportion of the parties' interests (values) in the ship and cargo.
• This process is called average adjustment
• Dispatch reports are prepared by experts (dispatchers).

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6. Agreements Relating to General Average

Special agreements may be made between the parties during the process of apportioning general average .

6.1. Legal Basis

Article 1275 of the Turkish Commercial Code regulates agreements relating to general average. The parties may agree in advance by contract on their general average liabilities and the methods of apportionment.

6.2. Types of Agreements

• Provisions included in freight contracts: Freight contracts often contain the clause "The York-Antwerp Rules shall apply."
• Subsequent agreements: A private agreement may be made between the parties after the danger has passed.
• Dispatch agreements: Agreements that define the legal framework or rules governing dispatch operations.

6.3. Legal Nature

These agreements are private law contracts entered into by the parties with their free will. However, they cannot contradict the necessary legal framework.

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7. York-Antwerp Rules and Agreements

The York-Antwerp Rules are the international uniform regulations relating to general average.

• It was first adopted in 1890 and has been revised many times (most recently in 2016).
• It does not apply directly unless explicitly referred to by the parties.
• However, in practice, almost all freight contracts refer to these rules.

These rules detail which sacrifices constitute general average, how expenses are to be shared, and the dispatch procedures.

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8. Court of Cassation Practice

Supreme Court rulings emphasize the importance of agreements relating to general average.

• The Court of Cassation holds that if a freight contract refers to the York-Antwerp Rules , the parties are bound by those rules
• In dispatch proceedings, the agreement of the parties takes precedence; however, provisions that are contrary to fairness and law are not considered valid.
• Furthermore, the Court of Cassation reserves the right of the parties to object regarding the binding nature of dispatch reports.

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9. Problems Encountered in Practice

Certain problems may arise in the application of agreements relating to general average:

• Insurance relationship: Cargo insurers are a key party to the general average contribution.
• Different legal systems: In international transport, the parties are subject to the laws of different countries.
• The lengthy dispatch processmakes resolving disputes more difficult.
• Gaps in the agreement: The parties failing to include sufficiently clear provisions in the agreement.

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10. Conclusion

General average is a concrete reflection of the principle of solidarity and equity. When a ship and its cargo face a common danger, the extraordinary sacrifices and expenses incurred are shared among all stakeholders.

For this sharing to be fair and predictable, it is crucial that the parties agreements regarding general average . References to the York-Antwerp Rules, in particular, ensure uniformity in international trade.

The Turkish Commercial Code and Supreme Court rulings also demonstrate that these agreements respect the intentions of the parties, but cannot exceed the limits of equity.

In conclusion, general average agreements that balances the interests of the carrier, shipper, and insurers, ensuring trust and stability in maritime trade.