On Effect Of The Ship Interests' Fault On General Average Contribution

…General average system is an ancient and special mechanism of sharing the risk of ocean transport in admiralty and maritime law. Notwithstanding the process of adjustment that begins without reference to the source and nature of the perils which necessitate a general average act, whether the contribution in general average comes true will undoubtedly be affected by these questions, especially that of the ship interests'fault. However, the opinions still remain in divergence with regard to the scope of the faults as well as their effects whatsoever on such contribution.Commencing from the basis of carrier's liability established in Hague Rules, this paper analyzes the relation between the ship interests'fault and general average contribution in conjunction with an introduction of the respective judicial practices and doctrines in United Kingdom, United States and China in this respect together with the understanding as to Rule D of York-Antwerp Rules 1974, and therefore concludes as follows:(1) No contribution may be collected from cargo where the general average was occasioned by the ship interests'fault, whether exemptible or actionable. However, the ship interests'exemptible fault will not preclude its entitlement to contribution if a Jason Clause or other similar clauses have been inserted in the bill of lading or the charter.(2) Rule D in York-Antwerp Rules makes it clear that whether there is a fault or not do not prejudice the existence of a general average act and the process of adjusting general average losses incurred, and it also preserves any remedies and defences that may be open to the parties concerned in respect of the general average contribution. In addition usually both defences and remedies simultaneously refer to the rights of the innocent cargo to refusal of contribution in general average and to claim for recovery of such contribution made. It can be naturally inferred that the so-called approach of"Contribution precedent, Recourse subsequent"is nothing but a misunderstanding as to the Rule D, and whether or not to enforce in accordance with such approach lies on how the actual situations of the case evolves and develops. In other words, Rule D does not previously establish a fixed mode for the parties to the adventure.