A Study On The Relationship Between Negligence And The Establishment, Contribution Of General Average

General average system is an ancient and special mechanism of sharing the risk of ocean transport in admiralty and maritime law. Notwithstanding the process of adjustment that begins without reference to the source and nature of the perils which necessitate a general average act, whether the contribution in general average comes true will undoubtedly be affected by these questions, especially that of the carrier negligence. However, the opinions still remain in divergence with regard to the scope of the faults as well as their effects whatsoever on such contribution. This paper analyzes the meaning of Rule D of York-Antwerp Rules, and Article 197 of The Maritime Code of China, the relationship between negligence and the establishment and contribution of general average, with an introduction of the respective judicial practices and doctrines in United Kingdom, United States and China and some specific cases in this respect together. Based on the regulations of the Maritime Code of China, it analyses that whether the general average system is applicable for the carriage of goods in coastal sea and inland river. Based on the "United Nations Convention on Contracts for the International Carriage of Goods Wholly or Partly by Sea" in which the exemption of nautical fault has been abolished, this paper intents to analyze the impact of the legal status of the carriers and shippers, and then making a conclusion of what attitude The Maritime Law of China should uphold. And therefore concludes as follows:a. The establishment of general average and the general average contribution are two independent issues, the negligence does not affect the establishment and adjustment of general average. If general average act is occasioned by one party's negligence, then the fault party can not ask the non-fault party for general average contributions; but the non-fault party can claim the loss to fault party.b. No contribution may be collected from cargo where the general average was occasioned by the carrier's negligence, whether exemptible or actionable. However, the carrier's exemptible fault will not preclude its entitlement to contribution if a Jason Clause or other similar clauses have been inserted in the bill of lading or the charter. c. Rule D in York-Antwerp Rules and Article 197 of The Maritime Code of China make it clear that whether there is a negligence or not, do not prejudice the existence of a general average act and the process of adjusting general average losses incurred, and it also preserves any remedies and defenses that may be open to the parties concerned in respect of the general average contribution. It can be naturally inferred that the so-called approach of "Contribution precedent, Recourse subsequent" is nothing but a misunderstanding as to the Rule D, and whether or not to enforce in accordance with such approach lies on how the actual situations of the case evolves and develops. In other words, Rule D does not previously establish a fixed mode for the parties to the adventure.d. The provisions of general average system in Chapter 10 of The Maritime Code of China also apply to the carriage of goods in coastal sea and inland river.e. Because of the exemption of nautical fault has been cancelled in the "United Nations Convention on Contracts for the International Carriage of Goods Wholly or Partly by Sea", the cases of general average will be decreased. According to the national conditions of China, exemption of nautical fault should still be retained in the carriage of goods by sea, but the carriage of goods in coastal sea and inland river does not.