WHAT IS GENERAL AVERAGE?

WHAT IS GENERAL AVERAGE?

According to Article 1272 of the Turkish Commercial Code, "General average is deemed to exist when an extraordinary sacrifice is knowingly made or an extraordinary expense is incurred in order to protect the ship, cargo, other goods, and freight engaged in a common maritime adventure from a danger that threatens them all, and in a manner that constitutes a reasonable course of action; and the damages and expenses directly resulting from this action are considered general average."

This institution, whose formation is based on Roman Law, is subject to the latest York-Antwerp Rules prepared by the International Maritime Committee and translated and published in Turkish, unless the parties agree otherwise.

Conditions of General Average:

1. The ship and its cargo embark on a shared maritime adventure.
This shared maritime adventure continues from the start of loading until the completion of unloading.

2. The existence of a common danger to the ship and cargo: It is sufficient that the danger threatens only the ship and cargo; danger to other goods and freight is not a prerequisite for the formation of general average. 3. The existence of an extraordinary sacrifice : Only extraordinary expenses incurred to save the ship and cargo from danger may be the subject of general average. 4. The sacrifice must have been made voluntarily . 5. The act of sacrifice must be reasonable: Expenses incurred due to actions that could be foreseen to yield no results will not be the subject of general average. 6. A beneficial result must have been achieved: The sacrifice must have resulted in a beneficial outcome for at least part of the ship and cargo. The personal debtors in general average are: the shipowner at the time the general average occurred, the creditor of the freight at the time of unloading, and the owner of other goods at the time of unloading. If the captain fails to pay the general average debts and provide security, delivering the goods that are to be included in the general average will also make him liable for those shares. Excess expenses incurred to avoid expenses that would otherwise fall under general average are also included in the general average. These replacement values ​​are included in general average, provided they are limited to the avoided expense. MAIN TYPES OF GENERAL AVERAGE: 1. General Average for Launching Cargo into the Sea 2. General Average for Lightening the Ship 3. General Average for Grounding 4. General Average for Refloating the Ship 5. General Average for Fire Extinguishing 6. General Average for Burning Cargo, etc. 7. General Average for Sheltering the Ship 8. General Average for Temporary Repairs 9. General Average for Cargo Damage During Unloading 10. General Average for Defending the Ship 11. General Average for Salvaging the Ship and Cargo from Enemies and Pirates 12. General Average for Fundraising

WHAT IS DISPATCH?

The distribution of damages under general average among the ship, cargo, and freight is called a dispatch. The document detailing these distributions is the dispatch report. A dispatch report generally has the nature of an expert report. In some cases, it may also have the nature of an arbitration award. The shipowner must have the dispatch prepared without delay; otherwise, they will be liable to the parties involved.

The dispatcher can be elected by unanimous agreement of the parties, or, if the parties cannot agree, appointed by the court of the place where the dispatch is to be conducted.

The dispatch report consists of four parts: the first part discusses the general average event; the second part discusses the creditor-asset bank; the third part discusses the debtor-asset bank; and the fourth part discusses the distribution ratio. The distribution ratio is obtained by dividing the value of the creditor bank by the value of the debtor bank.

Upon approval of the dispatch report, general average claims become enforceable. If the dispatch report is not challenged, the claim can become enforceable even before the decision becomes final.

for general average claims is one year. The limitation period begins from the date the ship reaches its destination, or, if it does not reach its destination, from the date of arrival at the port where the voyage ends.

RELEVANT SUPREME COURT DECISIONS:

Turkish Commercial Code Articles 1272-1285. Considering that there is no approved dispatch report in accordance with the relevant articles, that the claim for the collection of the general average share determined by the dispatch report also includes the request for the court to review and approve the dispatch report and issue a judgment for collection, and that there is no error in the court's decision to order the collection of the general average share by finding the dispatch report to be correct, and that there is no legal provision preventing the filing of a lawsuit directly requesting the collection of the general average share, and therefore the defendant-counterclaimant has a legal interest in filing the counterclaim, it is necessary to accept the request for correction of the decision regarding the counterclaim by the defendant-counterclaimant's attorney, to revoke our Chamber's reversal decision dated June 26, 2018, numbered 2016/13815 E-2018/4816 K., and to affirm the judgment which is in accordance with the procedure and the law. The Legal Department, in its decision numbered 2018/4685 E., 2020/3211 K.,

ruled that the operator lacked the relevant standing in the specific case; that in the dispatch process, which is the sharing of damages arising from general average, the shipowner is authorized to carry out the dispatch procedures, and the captain acts on behalf of the shipowner; that the liability arising from this calculation will be on behalf of the shipowner, not the operator; that the shipowner and the cargo owner will bear the new average damages; and that, according to Article 1179/last paragraph of the Turkish Commercial Code No. 6762 (Article 1272/last paragraph of the Turkish Commercial Code No. 6102), the damages and expenses will be shared among the ship, cargo, and freight. Therefore, the claimant lacked active standing to sue, and the claim was rejected. 11th Legal Chamber, Case No. 2015/12916 E., Decision No. 2016/5222 K.


Intern Law Faculty Student

Buse Güleser SEZENLİK