Provisions Applicable to General Average: Legal Framework and Application

In maritime transport, sometimes a portion of the ship, cargo, or freight is sacrificed, or extraordinary expenses are incurred, to prevent exceptional dangers that may arise during the voyage.
Such sacrifices general average and are subject to special regulations under maritime law.

In Turkish law, general average provisions Articles 1272-1285 of the Turkish Commercial Code (TTK) ; furthermore, the York-Antwerp Rules are widely applied in international transportation.

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1. Definition of General Average

According to Article 1272 of the Turkish Commercial Code, general average refers to extraordinary sacrifices and expenses knowingly and reasonably undertaken to avert a common danger faced by the ship, cargo, and freight

As this definition shows, there are three fundamental elements:

1. Common risk: The ship, cargo, and freight must all face the same risk.

2. Deliberate and reasonable behavior: Sacrifice should be made consciously and only to the extent necessary.

3. Exceptional nature: The action taken must be outside the realm of normal business operations.

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2. Examples of General Average

• Throwing part of the cargo overboard when the ship was in danger of sinking in a storm

• The ship was flooded with water to save it from the fire, and the cargo was damaged in the process

• The ship had to dock at an unexpected port for emergency repairs, incurring additional costs

• Extraordinary security expenditures are made to prevent pirate attacks

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3. Applicable Legal Provisions

3.1. Provisions of the Turkish Commercial Code

Articles 1272-1285 of the Turkish Commercial Code deal with general average:

• Definition

• Terms

• Principles for sharing costs and damages

• the rules of evidence and proof
  .

Some of the key provisions are:

• Turkish Commercial Code Article 1273: The decision regarding general average is made by the captain, but in exceptional circumstances, the crew may also make such a decision.

• Turkish Commercial Code Article 1275: The necessity of sacrifice and expense is assessed according to the circumstances of the case.

• Code Article 1279: The parties participating in general average — the ship owner, the cargo owner, the freight creditor — share the damage in specified proportions.

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3.2. York – Antwerp Rules

In international maritime transport, parties generally apply the York–Antwerp Rules to their contracts.
These rules are:

• It provides detailed lists of types of general average events (e.g., Jettison, Fire, Voluntary Stranding).

• It specifies the methods for calculating costs and damages.

• It prevents conflicts of legal frameworks between different countries, especially in mixed transport operations.

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4. Allocation of General Average

General average expenses of contribution :

• Ship value

• Load value

• Freight charges
  are determined, and each party bears the cost according to their proportion of the total value.

Example:
Total value = 10,000,000 TL
General average expense = 1,000,000 TL
Ship value 50% → 500,000 TL paid
Cargo value 40% → 400,000 TL paid
Freight value 10% → 100,000 TL paid

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5. Evidence and Documents

For a general average claim to be accepted and for the apportionment to be made, it must be documented that the event actually falls within the scope of general average . The Turkish Commercial Code (Articles 1281 and subsequent articles) and the York–Antwerp Rules contain clear provisions on this matter. Incomplete or insufficient documentation will both prevent the apportionment of costs and may lead to the rejection of insurance compensation.

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5.1. Official Records to be Kept by the Captain

• Captain's Report (Logbook):
  must detail the date, time, and location of the incident, weather conditions, the nature of the danger, the response taken, and the decisions made.
  The captain must confirm this report with the signatures of the crew.

• General Average Decision Record: The captain must explain that the extraordinary measures taken in the event of danger were deliberate and reasonable
  

• Crew and Passenger Statements:
  Can be used as witness statements if required.

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5.2. Expenditure and Loss Documents

• Invoices and Payment Documents:
  Official documents relating to expenses such as emergency repairs, rescue, port fees, pilotage, towing, fuel, food and beverages, and security.
  Invoices must clearly state which service they pertain to.

• Salvage and Assistance Contracts:
  If an agreement has been made with a salvage company (such as a Lloyd's Open Form – LOF), these contracts and payment records.

• Repair and Maintenance Reports:
  Shipyard reports documenting that the damage occurred or was prevented as a result of emergency intervention.

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5.3. Documents Related to the Shipment

• Bill of Lading and Freight Contract:
  These documents indicate who owns the cargo and the terms of transport. Without these documents, no contribution can be demanded from the cargo owners.

• Cargo Value Declaration:
  The invoice or declaration from the cargo owner showing the value of the goods being transported. This is essential for calculating the sharing ratios.

• Damage Assessment Report:
  This is prepared by port authorities or an expert for cargo that has been thrown into the sea or damaged.

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5.4. Related Documents to the Incident

• Communication Records:
  Radio communications during distress, emails, and correspondence between the captain and the shipowner.

• Photographs and Video Recordings:
  These show the extent of the danger, the intervention made, and the nature of the damage. They are strong evidence in insurance claims.

• Meteorological reports
  demonstrate the extraordinary nature of the danger posed by natural events such as storms and hurricanes.

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5.5. Importance from a Legal Process Perspective

• Burden of Proof:
  The party claiming general average bears the burden of proving that the sacrifice was genuinely made to eliminate the common danger.

• Insurance Payment:
  P&I and cargo insurance will only pay if the documentation is complete. Incomplete documentation will result in loss of rights.

• Allocation Accounts:
  The documents are used to determine which expenses are covered by general average and the amount each participant will pay.

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6. Legal Significance

General average provisions ensure a fair sharing of risks in maritime trade.
Without these provisions, ship and cargo owners might avoid making sacrifices in times of danger, which could increase losses for all parties involved.

Moreover:

• Insurance policies generally cover general average expenses.

• General average regulations strengthen trust and cooperation in maritime transport.

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7. Conclusion

General average is a principle of shared sacrifice in the face of a common danger , applied in maritime affairs for hundreds of years. The provisions of the Turkish Commercial Code and the York-Antwerp Rules together regulate this process at both national and international levels. Knowledge of the rights and obligations of the parties is critically important, especially for cargo owners and insurance companies.

Gozdenur Turna