Maritime Law and the General Average - Case Study Example

Sur 10 January Maritime Law Introduction: Maritime law arises in relation to the sea. When goods or products are transported through the sea, the maritime law gets involved. The law of general average is associated with the destruction or accidental incidents that might occur with goods carried over the seas. The general average law determines a justified measure for all the individuals who take part in the undertaking of the transport of the goods, in case of any mishap occurrence of the goods. This law is based on the implied contract between the involved parties and instead of claiming for the damages occurred, stresses on an equal distribution of the losses among the partners of the venture (Force, Yiannopoulos & Davies, 409). The present study takes into consideration an example of an accidental incident where cargoes are burnt while they were being transported causing damage and focuses on whether the law of general average would be applicable in this situation and if applicable, learn about the probable implications. Maritime Law and the General Average: The example that is taken into consideration reflects an incident of cargoes damaged due to fire caused by combustion heat in the ship. The incident occurred while the goods were on ship and was in the motion to get transported. The name of the vessel here is MV “Rustbucket”. The question in this arises as to whether the general average law can be initiated in this case. The initiation of the general average: The maritime law of general average reveals that it can be claimed in cases where sacrifices or expenses occur to the parties as a result of some major accident or destruction of the goods. The cargoes are supposed to have a share of the general average that is set for the transport of the goods. If the general average is initiated and claimed, the owner of the vessel also has a security against the damage that occurred in the incident (Marine Insurance Cargo Claims Information). This reflects the fact that the law assures a security to the vessel owner as well as the party for whom the products are being transported. If the above facts are considered for the concerned example of the study, it can be said that in this case the law of general average can be initiated. The example clearly presents a case of an accident. The fire that destroyed the cargoes was an accident and thus the vessel owner can be understood not to be able to suffer the cost of the damage alone. Rather, the law could provide with the justice to all the participating members of the venture such that the loss or the sacrifice might be distributed equally among all including the vessel owner as well as the owner of the cargoes. Thus in this case the general law can be initiated and claimed for the security against the damaged occurred. It acts as insurance for the products and thus in cases of such accidents where no party is intentionally at fault, the law can prove to be beneficial for the purpose of the recovery of the losses. Circumstances under which the general average can be declared: There are certain factors that are required to be considered before the claims of the general average can be adjusted for the losses occurred in an accident. It is essential that the loss that occurs on the goods or products is an unexpected one and exceeds the normal minimal value of losses. This means that if the amounts of the losses are found to be normal and under the control of the vessel owner or the other participating members, then general average cannot be declared in the case. The act is supposed to be intentional meaning that although the damage caused to the goods could be lessened, but that could not be done owing to the inactiveness of the vessel members. The presence of the risk factors is essential for the application of the law of general average. Moreover, the law needs to be applied for the purpose of the common safety of the products or the people, and not intended only for a particular property. The different situations that can lead to the declaration of the general average under the maritime laws include the incidents of stranding, fire, cargo shifting in weather that is not suitable for the transport, as well as in cases of heavy weather, accidents, breakdown of machinery, or any other incident that might cause damage to the vessel carrying the goods (Cornah, 6-8). Thus, considering the example concerned in the study, it can be realized that in order to declare and claim the general average law, the different factors as mentioned above need to be fulfilled by the incident. In cases of stranding, fire, or any other accidents, the general average can be declared and claimed if the required fulfillment occurs. In the example, it can be seen that the fire broke out as a result of certain irresponsibility on the part of vessel owner and the responsible departments that lead to the combustion heat spread fire effective to destroy the cargoes. The members could have used the extinguishers or take other measures to lessen the damage but that has not been considered in the case. This can prove the act to be voluntary on the part of the vessel members. Moreover the loss that has occurred is not an ordinary one and hence the claims of the general average can be considered as applicable in the case of the example. Similarly, in the other circumstances of accidents with the vessel carrying the goods over the seas, if the act can be found as an intentional or voluntary one, and leading to extraordinary losses, the general average law can be declared. Results of the declaration of the general average: The extent of the losses occurred as a result of an accident to the vessel carrying the goods to be transported has to be determined for the claims of the general average law. This is referred to as Adjusting, and York-Antwerp Rules are responsible for the control of these measures. The owner of the vessel needs to declare the losses suffered as a result of the incident. Such a declaration is done once the shipping of the goods to the required destination. The adjustment would depend on the rules that the destination port would prefer to follow. If the general average is declared, the owner of the vessel is provided with a security against the losses occurred to the goods (Messelt). Once the general average is declared, the adjuster determines the extent of the losses and evaluates whether the incident is capable of receiving the claims of the general average. Then the statement of the general average is prepared. This statement is significant since it includes the details of the incident, the extent of the losses, the documentation of the shipping and the products, as well as all the details regarding the parties involved in the transport of the goods. In the process, the statement leads to the effectiveness of the law with the help of the adjuster and the agents working on it. Depending on this effectiveness, and the relevance of the incident’s losses as determined, the decision would be taken by the law as to whether the claims can be received by the parties (Messelt). Thus from the above study and associating it with the concerned example, it can be understood that the claims for the general average depends on a number of steps that occur following the declaration of the general average by the vessel owner. If the extent of the losses can be found to be fulfilling the terms of the statements as would be determined by the adjuster and the law, then the participating members would be treated equally for the losses of the cargoes and the vessel owner would get a security for the losses as well. The entire process can thus be understood to be taking several factors into consideration and evaluating different measures before the claims are actually provided to the concerned participating members. The example that involves the incidence of fire causing damage to the cargoes is capable of initiating and declaring the general average. However, whether the claims can be achieved or not would depend on the evaluation and the judgment of the law. Conclusion: The study was focused on the general average concept of the maritime law considering an example that reflects loss of damages of the cargoes owing to fire caused in the shipping vessel. The study makes it clear that the incident is capable of initiating the general average and on reaching the destination, the owner of the vessel can declare the general average. However the process would take into consideration several steps that would involve estimation of the extent of the losses and whether the incident fulfills the other relevant factors as mentioned in the study. The general average if claimed and achieved would assist the owner of the vessel not to suffer the losses alone but the losses would rather be distributed equally among all the participating members of the venture, which is the primary concern of the law. Accidents other than fire that cause damage to the products carried over the seas also come under the influence of this law benefiting both the parties to the implied contract of the transport of the goods. References 1) Cornah, Richard. A Guide to General Average, RHLG, n.d., January 10, 2012 from: http://www.rhlg.com/pdfs/GAGuide.pdf 2) Force, Robert., Yiannopoulos, A.N. & Martin Davies. Admiralty and Maritime Law, Volume 2, Maryland: Beard Books, 2006 3) “Marine Insurance Cargo Claims Information”, IMU, n.d., January 10, 2012 from: http://www.imu.com/application/MARINEINSURANCECARGOCLAIMSINFORMATIONFORM.pdf 4) Messelt, Eric. Development of Maritime General Average Adjustment and Its Proposed Contribution to Alternative Dispute Resolution, messelt, 1995, January 10, 2012 from: http://www.messelt.org/papers/genavg/gapaper.htm Read More