General average has, in essence, nothing whatever to do with the contract of affreightment. Numerous dicta to that effect in the cases reported over the years could be cited, but perhaps a brief look at history would serve as well. It was not until the 14th or 15th century A.D. that merchants began seriously to explore means of transporting their goods by sea for sale without accompanying them themselves and thus found it necessary to invent contracts, like bills of lading and bills of exchange, which became necessary as a result of that change in practice. Yet, for many centuries before that, general average, certainly in its most elementary form, in relation to jettison, had been an accepted principle of law in all countries engaged in maritime commerce.

The exact basis of that principle has been the subject of much argument, certainly in the English courts. In the law, as in women’s clothes, fashions change. The same essentials are covered, but the manner of doing so varies with the tastes of the time. Thus the basis of the right to general average has been said to rest on custom, or on grounds of natural equity, or on some implied contract between the parties either at the time the goods were shipped or at the time of the general average act, or in some form of agency vested in the master. These distinctions, albeit fine ones, may have some relevance when considering such matters as jurisdiction applicable and the like, which I will not pursue here even were I competent to do so. They do not, however, touch on the essence of the problem which I am attempting to tackle, namely the relationship between general average and the contract of affreightment. For, to my knowledge, it has never been seriously argued that the former arises directly from the latter.

A failure to recognize this is perhaps at the root of much of the suspicion that exists in some quarters about the equity of the principle of general average itself. In any contract of carriage there is the concept that the carrier must exercise some degree of care in fulfilling his contract to carry the goods, with the corollary that if any failure on his part to do so causes loss or damage to the goods, the carrier is liable. Liability in that context depends on the cause of loss. In general average, however, the cause of the events giving rise to it are irrelevant. It is the nature of the act of volition, of the general average act itself, that counts, not the antecedent circumstances. Furthermore, the right to contribution arises at the time of the sacrifice even though subsequent events may reduce or even negative it1.

Were things that simple then I would submit that there would be nothing at all inequitable in the idea of an immediate settlement of the general average, leaving the parties to deal with other rights and liabilities inter se, whether under contract or