Exceptions to Liability to Contribute
I Deck Cargo
Stowage of cargo on deck has traditionally been regarded as improper. It has been treated as a danger to safe navigation;1 “liable to be unduly jettisoned owing to the facility of doing it when cargo under hatches would not be”;2 such jettison being “a justifiable riddance of encumbrances which ought never to have been there, and not as a sacrifice for the common safety”.3 Accordingly, though the owner of deck cargo is liable to contribute if jettisoned deck cargo is preserved by a general average act, he is generally unable to recover a contribution for such jettison.4 In general, it makes no difference that the shipper has consented to deck carriage, though, if the cargo is stowed on deck without the owner’s consent, he is entitled to an indemnity from the carrier.5 However, contribution is recoverable where all those interested in the adventure consent to such carriage6 or where deck carriage is customary,7 which is of course in modern times often the case.8 The York-Antwerp Rules, Rule I now states that: “No jettison of cargo shall be allowed as general average, unless such cargo is carried in accordance with the recognised custom of the trade”.9
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