RISKS, DAMAGES, ACCIDENTS OF MARITIME

COMMERCE AVERAGES
AVERAGES – ALL EXTRAORDINARY OR ACCIDENTAL EXPENSES WHICH
MAY BE INCURRED DURING THE VOYAGE FOR THE PRESERVATION OF
THE VESSEL OR CARGO, OR BOTH.
(1) SIMPLE/PARTICULAR AVERAGES – EXPENSES AND DAMAGE
CAUSED TO THE VESSEL OR TO HER CARGO WHICH HAVE NOT INURED
TO THE COMMON BENEFIT OF ALL INTERESTED PERSONS.
(2) GENERAL/GROSS AVERAGES – DAMAGES AND EXPENSES
DELIBERATELY CAUSED IN ORDER TO SAVE THE VESSEL , CARGO OR
BOTH FROM A REAL KNOWN RISK.
REQUISITES OF GENERAL AVERAGES

(1) There must be a COMMON DANGER;

(2) Part of the vessel or cargo, or both, is SACRIFICED
DELIBERATELY for the common safety;
(3) SUCCESSFUL SAVING of the vessel and cargo caused
by these expenses and damages;
(4) Expenses or damages must have been incurred after
taking PROPER LEGAL STEPS and AUTHORITY. (Magsaysay
vs. Agan, L- 6393, January 31, 1955)
 PROPER LEGAL STEPS/FORMALITIES

In order to incur expenses and cause damages corresponding to gross

average, there must be:
(1) RESOLUTION of the Captain, after deliberation with the Sailing Mate and
other officers of the vessel and after hearing persons interested in the cargo
who are present;
(2) If the Sailing Mate/other officers object, expenses and damages may be
executed under said resolution without prejudice to any action for damages
against the Captain for malice, lack of skill or negligence; Persons interested
in the cargo who have not been heard shall not contribute to the general
average;
(3) RESOLUTION shall be entered in the logbook with reasons as basis and the
dissent with reasons therefor;
(4) Delivery of resolution to MARITIME JUDICIAL AUTHORITY within 24 hours at
first port of arrival. (Phil. Home Assurance vs. CA, G.R. 106999, June 20, 1996).
 ARRIVALS UNDER STRESS

ARRIVAL UNDER STRESS – the arrival of a vessel at the nearest and most
convenient port upon instance of the captain if the vessel cannot continue
the trip to the port of destination on account of LACK OF PROVISIONS, WELL
FOUNDED FEAR OF SEIZURE, PRIVATEERS OR PIRATES or any ACCIDENT AT SEA
disabling it to navigate.
The Captain shall call a meeting of the officers and persons interest in the
cargo and should the reason be determined to be well founded, the minutes
signed by all shall be entered in the logbook. The captain shall have the
deciding vote and objections and protests by persons interested in the cargo
may be entered therein.
The Captain is required to make a marine protest within 24 hours upon arrival
at the port of distress. If the cause for arrival ceases and he should discontinue
with the voyage, he becomes liable for damages.
 ARRIVAL – NOT CONSIDERED AS LAWFUL

An Arrival shall not be considered as lawful under the following:

(1) If the lack of provision should arise from failure to observe USAGE
and CUSTOM or because of BAD STOWAGE or NEGLIGENCE IN THEIR
CARE;
(2) If the risks of enemies, privateers or pirates should NOT have been
well known or NOT based on provable facts;
(3) If the defect of the vessel should have arisen from the fact that it
was NOT SEAWORTHY or from some ERRONEOUS ORDERS of the
Captain.
(4) Whenever MALICE, NEGLIGENCE, LACK OF FORESIGHT, WANT OF
SKILL on the part of the Captain exists in the act causing the damage.
The expenses of an arrival under stress shall be for the account of the
shipowner or shipagent but not for damage caused by the shipper provided
the arrival is lawful.
If in order to make repairs to the vessel or that the cargo may suffer damage,
the Captain must request AUTHORIZATION for UNLOADING of the cargo: (1)
from the COMPETENT COURT of removal with knowledge of persons
interested in the cargo; (2) from the PHILIPPINE CONSUL, if in a foreign port.
In the first case (repairs to the vessel)- expenses for unloading shall be for the
account of the shipowner or shipagent; in the second case (preservation of
cargo)- expenses for unloading shall be for the account of the owner of the
goods ; if for both reasons, the expenses shall be divided proportionately
between the value of the vessel and that of the cargo.
 COLLISIONS

COLLISION – the IMPACT of two vessels both of which are MOVING. It

includes allision, the striking of a moving vessel against one that is
stationary.
There is a PRESUMPTION of fault against a moving vessel that strikes a
stationary object. (Far Eastern Shipping vs. CA, G.R. No. 130068, October
1, 1998)
If the collision is imputable to both vessels or it cannot be determined
which is at fault, each one shall suffer her OWN damage and both are
SOLIDARILY liable to the cargo owners.
If vessels collide with one another due to FORTUITOUS EVENT , each
vessel and he cargo shall suffer their own damage.
PILOT – in maritime law, a pilot is a person duly qualified, and licensed, to
conduct a vessel into or out of ports, or in certain waters.
The Master is still in command of the vessel despite the presence of the pilot.
He is required to interfere when he finds that the pilot is incompetent or
physically incapacitated.
The colliding vessel is prima facie responsible for the collision. Thus, the party
claiming exemption from liability has the burden of proving his claim.
The action for recovery of damages based on collision must require a marine
protest by the captain within 24 hours upon arrival at point nearest the collision
or first port of arrival. Absence of protest, however, will not prejudice damage
to persons or their cargo.
 SHIPWRECKS

SHIPWRECKS – A ship which has received injuries rendering her

INCAPABLE of navigation.
The damage or deterioration suffered by a vessel and her cargo by
reason of shipwreck or stranding shall be for the account of the
owners, the part saved belongs to the in the same proportion.
If the wreck or stranding should be caused by MALICE, NEGLIGENCE or
LACK OF SKILL of the captain or that the vessel sailed being
UNSEAWORTHY, the captain shall be liable for damages to the ship
agent or the shipper.
The goods saved from the wreck shall be bound for the payment of
expenses of salvage.
If several vessels sail under CONVOY and one of them should be
shipwrecked, the cargo saved shall be distributed among the rest in
proportion to the amount which each one is able to take.
If any captain should refuse, the captain of the wrecked vessel shall
enter a marine protest against him within 24 hours after arrival at the
first port. The refusing captain becomes liable for damages.
PROOF AND LIQUIDATION OF GROSS/ORDINARY AVERAGES – for your
personal reading. These are procedural matters done either by
MUTUAL AGREEMENT of the parties or by JUDICIAL INTERVENTION, of
course with NOTICE and HEARING to the parties.
Thank You!