The Rotterdam Rules and

General Average

Svante O. Johansson
AMD Forum
Marrakesh November 6, 2009

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Fault concept and General Average
Fault is outside the scope of General Average
Article 84 RR
Nothing in this Convention affects the
application of terms in the contract of carriage
or provisions of national law regarding the
adjustment of general average.
Rule D YAR
Rights to contribution in general average shall
not be affected, though the event which gave
rise to the sacrifice or expenditure may have
been due to the fault of one of the parties to
the adventure; but this shall not prejudice any
remedies or defences which may be open
against or to that party in respect of such
fault.

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 No contribution to a party at
fault
Even if no loss or damage occur the carrier, as it
often is, might be at (actionable) fault
The test is whether the owner, if the GA-act had not
been instigated, would have been liable
Exemptions that exclude fault
No legal responsibility arises
Fault of master always excepted
Excluding liability (also only loss or damage)
Art. 17.3 RR
Nautical fault exemption not included
Exemptions or limitations that do not exclude fault
Limited monetary liability
Notice of claim
Limitation of action
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Empiric (but non scientific) data
Causes to 100 cases of General Average
Statements
Grounding 38
Collision 19
Engine damage 16
Springing a leak 6
List 4
Fire 16
Other causes 3
100

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Consequences GA caused by
grounding
Grounding
Human factors 66 %
Mostly considered as nautical faults
Nature of fairway or other ship 25 %
Remaining (technical faults or unknown) 8%
Owner can not rely on nautical fault
Multiple factors causes the grounding
Recover part of contribution
Not likely to instigate litigation apart from
exceptional circumstances

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Consequences GA caused by
collision
Collision
Normally attributable to nautical fault
If nautical fault, the owner is at fault and cannot
recover from cargo interest.
However, GA can be adjusted and the owner can
collect contribution from cargo in proportion to
the fault of the other ship.

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Consequences GA caused by
Engine damage
Engine damage
Technical failure
Human factors
Fire
On the face of the facts the owner seems to have
a good chance to collect contribution from cargo.
However,
Was the ship seaworthy according to 15.5 RR?
The cargo interests are, and will be alert, when
an engine damage occurs
Request for explanations
What about contributing events in 17.6 RR?
Probably little more difficult. Seaworthy through
out the entire sea leg might also influence. 8
Consequences GA caused by
springing aleak or list
A vessel that springs a leak on the high sea
normally will be considered unseaworthy
Owner must prove either
Intervening circumstances, or that he or she has
exercised due diligence in making and keeping the
ship seaworthy
If he succeed contribution can be collected. As
today?
List
Why developed the list?
In many aspects similar to springing a leak
NB! Jettison of goods
Carrier not liable even if unseaworthiness shown?
Art. 17.3(o) and 17.5 cf. art. 16
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Can the owner collect contribution?
Challenges
Hard to foresee if and to what extent there will
be any fault on the owner s side according to
Rotterdam Rules.
The Rotterdam Rules will most likely result in a
decline in the numbers of declared General
Averages.
Will the General Average disappear because of
Rotterdam Rules?

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