When goods or ship’s gear are voluntarily sacrificed by casting them overboard in time of peril, with the object of preventing the loss of the vessel and the balance of her cargo, there is said to be a loss by jettison, Such a sacrifice will normally be recoverable in general average, but it must be understood that there is a direct claim on Underwriters as a loss by an insured peril.
There are, however, exceptions to this rule, such as cargo jettisoned by reason of its own inherent vice. It must be noticed that a claim for meat jettisoned was rejected because it became putrid during a delayed voyage. Other examples arise from the carriage of cargo on deck. Jettison is not recoverable unless the cargo is shipped on deck according to custom, as is usual in the timber trade. In other circumstances it is necessary to specifically insure the risks of jettison and washing overboard, as, normally, only restricted cover is granted.
Dangerous cargoes will often be loaded on deck, and it will be appreciated that jettison may become essential purely on account of its dangerous nature. Such jettison will not be recoverable under the policy unless stipulated in the terms.
Whatever is jettisoned remains the property of the original owners, and if subsequently recovered can be claimed by them subject to payment of any necessary salvage.
It is to be noted that, under the Institute Cargo Clauses (B) and (C), the risk of “jettison” is specifically covered as well as “general average sacrifice”.
Possibly the intention is to preserve the original peril, and make it clear that such risk is recoverable directly from Underwriters, rather than to give the impression of providing a more extensive cover than actually exists.
When the York-Antwerp Rules were first introduced in 1890, the loss of deck cargo by jettison was excluded entirely.
“According to the rules of Maritime law, the placing of goods upon the deck of a sea-going ship is improper stowage because they are hindrances to the safe navigation of the vessel; and their jettison is therefore regarded, in a question with the other shippers of cargo, as a justifiable riddance of encumbrances which ought never to have been there and not as a sacrifice for the common safety.”
However, this was something of a departure from the previous practice under which timber cargo, carried on deck in accordance with the custom of the trade, and jettisoned for the common safety at a time of peril, was allowed in general average as if such cargo had been jettisoned from below deck.
The new provision meant that, as no contribution was due from other interests, the Underwriter of the deck cargo, having provided insurance for the entire loss, was put at a disadvantage compared with the old system. The injustice imposed by the Rule soon raised protests, and, since 1924, the jettison of any cargo carried in accordance with the recognised custom of the trade has been allowed in general average when sacrificed for the common good.
Rule I have remained unchanged from that time and reads as follows:
Rule I—Jettison of Cargo
No jettison of cargo shall be made well as General Average, unless such cargo is carried in accordance with the recognised custom of the trade.
The question of what constitutes a “deck” has not been defined, and it can be assumed that the position of the stowage can sometimes give rise to difficulty of interpretation. In practice, if the goods are stowed according to custom, and not in violation of the contract of affreightment, no problem is anticipated.
It will be observed that the Rule makes no reference to cargo shipped on deck by arrangement between the owner of the cargo and the carrier, the inference being that if there is no custom of the trade to ship the goods on deck no general average contribution can be claimed for the jettison of such cargo.
Although the Rule was not altered in 1974 to resolve the question whether the jettison of a container carried on deck would be made good as general average, this does not mean the problem was not considered. Apart from the difficulty in defining a “container” in such a way as to cover possible technological developments in the future, not all merchants readily accept that the practice of carrying containers on deck is a custom of the trade.
Rule II acknowledges that incidental damage may result from the act of jettison itself, and covers not only the consequences thereof but also the damage occasioned to the property in the preparation for the jettison.
The 1994 Rule reads as follows:
Rule II—Loss or Damage by Sacrifices for the Common Safety
Loss of or damage to the property involved in the common maritime adventure by or in consequence of a sacrifice made for the common safety, and by water which goes down a ship’s hatches opened or other opening made for the purpose of making a jettison for the common safety, shall be made good as general average.
The title of the Rule has been changed from “Damage by Jettison and Sacrifice for the Common Safety”, and the opening words previously read “Damage did to a ship and cargo, or either of them, by or in consequence …”
These alterations are in the nature of a tidying up operation.
