The apportionment of sacrifice made in a common maritime adventure — York-Antwerp Rules, place of adjustment, security, and carrier’s fault issues.
General average is the institution for the apportionment, on a pro-rata basis, of extraordinary sacrifices and expenses intentionally and reasonably made or incurred to save the ship and cargo from a common danger, among all surviving interested parties (ship, cargo, freight). The general average clause in the bill of lading determines by which rules (York-Antwerp Rules) and where it will be adjusted.
The New Jason clause, however, goes a step further: it ensures that cargo interests contribute to general average and salvage expenses even in cases arising from the carrier’s negligence — in situations where the carrier is not legally liable.
Three critical points for the cargo interest: (1) Cargo will not be delivered without providing security for the general average contribution; (2) the place of adjustment is London in most forms, which entails costs and delays; (3) if it is proven that the incident arose from the carrier’s breach of its seaworthiness obligation, the contribution can be challenged.
1. What is General Average? Fundamental Concepts
General average is one of the oldest institutions of maritime trade. In the event of a common danger (fire, grounding, ingress of water), a conscious sacrifice is made to save the ship and cargo — for example, part of the cargo is thrown overboard (jettison) or extraordinary expenses are incurred for salvage. Since everyone benefits from this sacrifice, everyone bears the burden together. Concepts:
General average sacrifice/expenditure: An extraordinary sacrifice or expenditure voluntarily and reasonably made for the common safety.
General average contribution: The contribution to be paid by each interest (ship, cargo, freight) in proportion to its saved value.
Adjustment: The process of calculating general average contributions is carried out by the adjuster.
2. Function of the General Average Clause
Function of the ClauseIt stipulates that general average shall be adjusted according to the York-Antwerp Rules and specifies the place of adjustment (as a rule London in template forms; if another place is agreed upon in the charter party, then that place). The clause also regulates that the cargo shall pay its general average contribution even if the general average arose from the fault of the master, pilot, or crew members.
3. York-Antwerp Rules: Which Version?
The York-Antwerp Rules establish the international standard for general average and are updated periodically (1994, 2004, 2016 versions). The differences between versions are significant, particularly regarding whether salvage expenses and port charges are included in general average. Since older versions of bills of lading may refer to older rules, the practitioner must ascertain which version is referenced.
4. Place of Adjustment and Adjuster
The place of adjustment is stipulated as London in most template forms. The consequences of this are:
The process is conducted by a foreign adjuster, using foreign procedures and language.
Costs and time burden increase; the preparation of the adjustment report can take months.
Objections and oversight regarding the report are shaped according to the law of the place of adjustment.
5. Security and Release of Cargo
When general average is declared, the cargo is not delivered without security being provided against its contribution share. In practice:
| Situation | Security Provided |
|---|---|
| Cargo insured | Insurer provides an average guarantee (general average guarantee) |
| Cargo uninsured | Cargo interest deposits an average deposit (cash deposit) |
| In any case | Additionally, an average bond (general average bond) is signed |
Practitioner’s note: The deposit amount requested before delivery and its calculation method can also be audited via the average adjustment report. Against an excessive deposit request, the insurer should ensure the cargo’s release with a letter of guarantee; thus, the cargo is cleared from customs without delay, and the accumulation of storage/demurrage is prevented.
6. New Jason Clause and Carrier’s Fault
Function of the ClauseIn the event of an accident, danger, or disaster occurring before or during the voyage — even if caused by negligence, in cases where the carrier is not legally or contractually liable — it ensures the participation of cargo interests in general average, salvage, and special charges; it allows for a deposit to be requested for the estimated contribution share prior to delivery.
The reason for the clause is historical: in some legal systems (especially the USA), general average contribution cannot be claimed if the carrier’s negligence is found. The New Jason clause contractually overrides this outcome when the carrier benefits from the exception of technical fault and binds the cargo interest to the contribution.
Counter-argument for the cargo interest: The New Jason clause is essentially based on the assumption that the carrier is not responsible for technical fault. If the incident arose from commercial fault or unseaworthiness — which is a mandatory obligation of the carrier — the protective effect of the clause largely disappears. Therefore, the focus of the defense should be to determine whether the incident was a technical fault or unseaworthiness/commercial fault.
7. Cargo Interest’s Objection Possibilities
Unseaworthiness: If the incident arose from the vessel not being seaworthy/fit for the voyage/fit for cargo at the beginning of the voyage, the carrier cannot claim general average contribution and cannot rely on the New Jason clause.
Audit of the adjustment report: The calculation of the contribution, the included expense items, and the valuation method can be audited.
Nature of the sacrifice as “general average”: It can be argued whether the incurred expense was genuinely for common safety and of an extraordinary nature.
Refund of security: If the amount payable as a result of the adjustment is less than the deposited amount, the difference is refunded.
8. Its Place in Turkish Law
General average is also regulated in the Turkish Commercial Code (Art. 1272 et seq.), and contractual references to the York-Antwerp Rules are accepted as valid in practice. Since the general average clause does not, as a rule, narrow the carrier’s liability, it does not fall under the scrutiny of TCC Article 1243 due to this characteristic. In contrast, the aspect of the New Jason clause which foresees contribution despite the carrier’s fault, can be debated to the extent that it conflicts with the carrier’s mandatory seaworthiness obligation in the specific case.
9. Checklist
Are there general average and New Jason clauses in the bill of lading?
Which York-Antwerp version is being referred to?
Where is the adjustment place? (If London, it’s a foreign process)
What type of security will it be? (Insurer’s guarantee, or cash deposit?)
Did the incident arise from a technical defect or unseaworthiness?
Is the deposit amount consistent with the adjustment report?
Was the cargo released without delay? (Warehousing/demurrage risk)
Related articles from 2M Hukuk:
- How Are Disputes Resolved According to Types of Freight Contracts?
- Provisional Attachment of Ships
- How Are Laytime and Demurrage Disputes Calculated?
Why Is Expert Legal Support Necessary?
Bills of lading clauses can, with a single sentence, change the country where the case will be heard, the applicable law, the scope of liability, and the upper limit of compensation. While Turkish law regulates some of these clauses with mandatory provisions, others remain valid; establishing the correct strategy requires reading the document line by line and comparing each clause with the legal regime.
2M Law Firm, with its Tuzla-based structure and field experience in the shipyard region, provides legal services on bills of lading and charter party disputes, cargo damage and loss claims, late delivery compensation, laytime and demurrage calculations, general average, forwarder liability, ship arrest, and collection of maritime claims.
Our service areas: bills of lading disputes lawyer, maritime commercial law lawyer, charter party disputes lawyer, Istanbul cargo damage lawyer, freight and demurrage claims lawyer, ship arrest lawyer, general average lawyer, shipyard lawyer — we operate in the regions of Tuzla, Pendik, Kartal, Maltepe, Aydınlı, Tepeören, Orhanlı, Gebze, Darıca, Çayırova, Dilovası and Kocaeli.
Legal consultancy in English, French, and Arabic is provided for foreign clients. To find out which law and which court the bill of lading you hold binds you to, you can contact our team of lawyers.
Frequently Asked Questions
What is a general average clause?
This is the bill of lading clause that determines by which rules (York-Antwerp Rules) and where general average will be adjusted. It regulates the sharing of sacrifices and expenses made to save the ship and cargo in a common maritime adventure among the stakeholders.What is the purpose of the New Jason clause?
It ensures the participation of cargo interests in general average and salvage costs, even in cases arising from the carrier’s negligence, where the carrier is not legally responsible. It contractually overrides the outcome of “no contribution can be demanded if there is fault” found in some legal systems.How is cargo released in general average?
Cargo is not delivered without security being provided against the general average contribution. For insured cargo, the insurer provides the security (average guarantee); for uninsured cargo, a cash deposit (average deposit) is required, and an average bond is also signed.Can a cargo interest object to the contribution?
Yes, they can. If it is proven that the incident arose from the carrier’s breach of seaworthiness obligations, the contribution can be objected to. Additionally, the calculations and expense items in the average adjustment report can be audited.
Tags: bill of ladinggeneral averagegeneral averageNew Jason clauseYork-Antwerp Rulesaverage adjustmentgeneral average contributionTTK 1272maritime commercial law attorneyTuzla maritime law attorney2M Law Firm
Legal Disclaimer: This article has been prepared for general informational purposes only; it does not constitute legal opinion or advice. Clause evaluations are based on the assumption that Turkish law applies to the dispute, and the results will change if the applicable law changes. Clause texts have not been reproduced verbatim; their functions have been analyzed. The copyrights of template forms belong to the relevant organizations. The bibliographical information of the mentioned court decisions should be verified through UYAP and the Court of Cassation/Constitutional Court decision search systems. For legal texts, the current versions of Turkish Commercial Code numbered 6102 and the Private International Law and Procedure Act numbered 5718 should be taken as a basis. © 2M Law Office
