TITLE FOUR

RISKS, DAMAGES AND ACCIDENTS OF MARITIME COMMERCE

SECTION ONE
AVERAGES
ARTICLE 806. For the purposes of this code the following shall be considered
averages:
1. All extraordinary or accidental expenses which may be incurred during the voyage
in order to
preserve the vessel, the cargo, or both.
2. Any damages or deteriorations which the vessel may suffer from the time it puts to
sea from the
port of departure until it casts anchor in the port of destination, and those suffered by
the merchandise
from the time they are loaded in the port of shipment until they are unloaded in the
port of their
consignment.
ARTICLE 807. The petty and ordinary expenses incident to navigation, such as
those of pilotage
of coasts and ports, those of lighterage and towage, anchorage, inspection, health,
quarantine, lazaretto,
and other so-called port expenses, costs of barges and unloading until the
merchandise is placed on the
wharf, and any other usual expenses of navigation, shall be considered ordinary
expenses to be
defrayed by the shipowner, unless there is an express agreement to the contrary.
ARTICLE 808. Averages shall be:
1. Simple or particular.
2. General or gross.
ARTICLE 809. As a general rule, simple or particular averages shall include all the
expenses and
damages caused to the vessel or to her cargo which have not inured to the common
benefit and profit of
all the persons interested in the vessel and her cargo, and especially the following:
1. The losses suffered by the cargo from the time of its embarkation until it is
unloaded, either on
account of inherent defect of the goods or by reason of an accident of the sea or
force majeure, and the
expenses incurred to avoid and repair the same.
2. The losses and expenses suffered by the vessel in its hull, rigging, arms, and
equipment, for the
same causes and reasons, from the time it puts to sea from the port of departure
until it anchors and
lands in the port of destination.
3. The losses suffered by the merchandise loaded on deck, except in coastwise
navigation, if the
marine ordinances allow it.
4. The wages and victuals of the crew when the vessel is detained or embargoed by
legitimate
order or force majeure, if the charter has been contracted for a fixed sum for the
voyage.
5. The necessary expenses on arrival at a port, in order to make repairs or secure
provisions.
6. The lowest value of the goods sold by the captain in arrivals under stress for the
payment of
provisions and in order to save the crew, or to meet any other need of the vessel,
against which the
proper amount shall be charged.
7. The victuals and wages of the crew while the vessel is in quarantine.
8. The loss inflicted upon the vessel or cargo by reason of an impact or collision with
another, if it
is accidental and unavoidable.
If the accident should occur through the fault or negligence of the captain, the latter
shall be liable for
all the losses caused.
9. Any loss suffered by the cargo through the fault, negligence, or barratry of the
captain or of the
crew, without prejudice to the right of the owner to recover the corresponding
indemnity from the
captain, the vessel, and the freightage.
ARTICLE 810. The owner of the goods which gave rise to the expense or suffered
the damage
shall bear the simple or particular averages. cd
ARTICLE 811. As a general rule, general or gross averages shall include all the
damages and
expenses which are deliberately caused in order to save the vessel, its cargo, or
both at the same time,
from a real and known risk, and particularly the following:
1. The goods or cash invested in the redemption of the vessel or of the cargo
captured by enemies,
privateers, or pirates, and the provisions, wages, and expenses of the vessel
detained during the time the
settlement or redemption is being made.
2. The goods jettisoned to lighten the vessel, whether they belong to the cargo, to
the vessel, or to
the crew, and the damage suffered through said act by the goods which are kept on
board.
3. The cables and masts which are cut or rendered useless, the anchors and the
chains which are
abandoned, in order to save the cargo, the vessel, or both.
4. The expenses of removing or transferring a portion of the cargo in order to lighten
the vessel
and place it in condition to enter a port or roadstead, and the damage resulting
therefrom to the goods
removed or transferred.
5. The damage suffered by the goods of the cargo by the opening made in the
vessel in order to
drain it and prevent its sinking.
6. The expenses caused in order to float a vessel intentionally stranded for the
purpose of saying it.
7. The damage caused to the vessel which had to be opened, scuttled or broken in
order to save the
cargo.
8. The expenses for the treatment and subsistence of the members of the crew who
may have been
wounded or crippled in defending or saying the vessel.
9. The wages of any member of the crew held as hostage by enemies, privateers, or
pirates, and the
necessary expenses which he may incur in his imprisonment, until he is returned to
the vessel or to his
domicile, should he prefer it.
10. The wages and victuals of the crew of a vessel chartered by the month, during
the time that it is
embargoed or detained by force majeure or by order of the government, or in order
to repair the
damage caused for the common benefit.
11. The depreciation resulting in the value of the goods sold at arrival under stress in
order to repair
the vessel by reason of gross average.
12. The expenses of the liquidation of the average.
ARTICLE 812. In order to satisfy the amount of the gross or general averages, all the
persons
having an interest in the vessel and cargo therein at the time of the occurrence of the
average shall
contribute.
ARTICLE 813. In order to incur the expenses and cause the damages corresponding
to gross
average, there must be a resolution of the captain, adopted after deliberation with
the sailing mate and
other officers of the vessel, and after hearing the persons interested in the cargo who
may be present.
If the latter shall object, and the captain and officers or a majority of them, or the
captain, if opposed to
the majority, should consider certain measures necessary, they may be executed
under his
responsibility, without prejudice to the right of the shippers to proceed against the
captain before the
competent judge or court, if they can prove that he acted with malice, lack of skill, or
negligence.
If the persons interested in the cargo, being on board the vessel, have not been
heard, they shall not
contribute to the gross average, their share being chargeable against the captain,
unless the urgency of
the case should be such that the time necessary for previous deliberations was
wanting.
ARTICLE 814. The resolution adopted to cause the damages which constitute
general average
must necessarily be entered in the log book, stating the motives and reasons for the
dissent, should
there be any, and the irresistible and urgent causes which impelled the captain if he
acted of his own
accord.
In the first case the minutes shall be signed by all the persons present who could do
so before taking
action, if possible; and if not, at the first opportunity. In the second case, it shall be
signed by the
captain and by the officers of the vessel.
In the minutes, and after the resolution, shall be stated in detail all the goods
jettisoned, and mention
shall be made of the injuries caused to those kept on board. The captain shall be
obliged to deliver one
copy of these minutes to the maritime judicial authority of the first port he may make,
within twentyfour
hours after his arrival, and to ratify it immediately under oath.
ARTICLE 815. The captain shall direct the jettison, and shall order the goods cast
overboard in
the following order:
1. Those which are on deck, beginning with those which embarrass the maneuver or
damage of the
vessel, preferring, if possible, the heaviest ones with the least utility and value. cda
2. Those which are below the upper deck, always beginning with those of the
greatest weight and
smallest value, to the amount and number absolutely indispensable.
ARTICLE 816. In order that the goods jettisoned may be included in the gross
average and the
owners thereof be entitled to indemnity, it shall be necessary insofar as the cargo is
concerned that their
existence on board be proven by means of the bill of lading; and with regard to those
belonging to the
vessel, by means of the inventory prepared before the departure in accordance with
the first paragraph
of Article 812.
ARTICLE 817. If in lightening a vessel on account of a storm, in order to facilitate its
entry into
a port or roadstead, part of the cargo should be transferred to lighters or barges and
be lost, the owner
of said part shall be entitled to indemnity, as if the loss had originated from a gross
average, the amount
thereof being distributed between the vessel and cargo from which it came.
If, on the contrary, the merchandise transferred should be saved and the vessel
should be lost, no
liability may be demanded of the salvage.
ARTICLE 818. If, as a necessary measure to extinguish a fire in a port, roadstead,
creek, or bay,
it should be decided to sink any vessel, this loss shall be considered gross average,
to which the vessels
saved shall contribute.
SECTION TWO
ARRIVALS UNDER STRESS
ARTICLE 819. If during the voyage the captain should believe that the vessel can
not continue
the trip to the port of destination on account of the lack of provisions, well-founded
fear of seizure,
privateers, or pirates, or by reason of any accident of the sea disabling it to navigate,
he shall assemble
the officers and shall summon the persons interested in the cargo who may be
present, and who may
attend the meeting without the right to vote; and if, after examining the
circumstances of the case, the
reason should be considered well-founded, the arrival at the nearest and most
convenient port shall be
agreed upon, drafting and entering the proper minutes, which shall be signed by all,
in the log book.
The captain shall have the deciding vote, and the persons interested in the cargo,
may make the
objections and protests they may deem proper, which shall be entered in the minutes
in order that they
may make use thereof in the manner they may consider advisable.
ARTICLE 820. An arrival shall not be considered lawful in the following cases:
1. If the lack of provisions should arise from the failure to take the necessary
provisions for the
voyage according to usage and customs, or if they should have been rendered
useless or lost through
bad stowage or negligence in their care.
2. If the risk of enemies, privateers, or pirates should not have been well known,
manifest, and
based on positive and provable facts.
3. If the defect of the vessel should have arisen from the fact that it was not repaired,
rigged,
equipped, and prepared in a manner suitable for the voyage, or from some
erroneous order of the
captain.
4. When malice, negligence, want of foresight, or lack of skill on the part of the
captain exists in
the act causing the damage.
ARTICLE 821. The expenses of an arrival under stress shall always be for the
account of the
shipowner or agent, but they shall not be liable for the damages which may be
caused the shippers by
reason of the arrival provided the latter is legitimate.
Otherwise, the ship agent and the captain shall be jointly liable.
ARTICLE 822. If in order to make repairs to the vessel or because there is danger
that the cargo
may suffer damage, it should be necessary to unload, the captain must request
authorization from the
competent judge or court for the removal, and carry it out with the knowledge of the
person interested
in the cargo, or his representative, should there be any.
In a foreign port, it shall be the duty, of the Philippine Consul, where there is one, to
give the
authorization.
In the first case, the expenses shall be for the account of the ship agent or owner,
and in the second,
they shall be chargeable against the owners of the merchandise for whose benefit
the act was
performed.
If the unloading should take place for both reasons, the expenses shall be divided
proportionately
between the value of the vessel and that of the cargo.
ARTICLE 823. The custody and preservation of the cargo which has been unloaded
shall be
intrusted to the captain, who shall be responsible for the same, except in cases of
force majeure.
ARTICLE 824. If the entire cargo or part thereof should appear to be damaged, or
there should
be imminent danger of its being damaged, the captain may request of the competent
judge or court, or
of the consul in a proper case, the sale of all or of part of the former, and the person
taking cognizance
of the matter shall authorize it, after an examination and declaration of experts,
advertisements, and
other formalities required by the case, and an entry in the book, in accordance with
the provisions of
Article 624.
The captain shall, in a proper case, justify the legality of his conduct, under the
penalty of answering to
the shipper for the price the merchandise would have brought if they had arrived in
good condition at
the port of destination.
ARTICLE 825. The captain shall be responsible for the damages caused by his
delay, if after the
cause of the arrival under stress has ceased, he should not continue the voyage.
If the cause of arrival should have been the fear of enemies, privateers, or pirates, a
deliberation and
resolution in a meeting of the officers of the vessel and persons interested in the
cargo who may be
present, in accordance with the provisions contained in Article 819, shall precede the
departure.
SECTION THREE
COLLISIONS
ARTICLE 826. If a vessel should collide with another, through or the fault,
negligence, or lack of
skill of the captain, sailing mate, or any other member of the complement, the owner
of the vessel at
fault shall indemnify the losses and damages suffered, after an expert appraisal.
aisadc
ARTICLE 827. If the collision is imputable to both vessels, each one shall suffer its
own
damages, and both shall be solidarily responsible for the losses and damages
occasioned to their
cargoes.
ARTICLE 828. The provisions of the preceding article are applicable to the use in
which it
cannot be determined which of the two vessels has caused the collision.
ARTICLE 829. In the cases above mentioned the civil action of the owner against the
person
causing the injury as well as the criminal liabilities, which may be proper, are
reserved.
ARTICLE 830. If a vessel should collide with another, through fortuitous event or
force majeure,
each vessel and its cargo shall bear its own damages.
ARTICLE 831. If a vessel should be forced by a third vessel to collide with another,
the owner of
the third vessel shall indemnify the losses and damages caused, the captain thereof
being civilly liable
to said owner.
ARTICLE 832. If by reason of a storm or other cause of force majeure, a vessel
which is properly
anchored and moored should collide with those nearby, causing them damages, the
injury occasioned
shall be considered as particular average of the vessel run into.
ARTICLE 833. A vessel which, upon being run into, sinks immediately, as well as
that which,
having been obliged to make a port to repair the damages caused by the collision, is
lost during the
voyage or is obliged to be stranded in order to be saved, shall be presumed as lost
by reason of
collision.
ARTICLE 834. If the vessels colliding with each other should have pilots on board
discharging
their duties at the time of the collision, their presence shall not exempt the captains
from the liabilities
they incur, but the latter shall have the right to be indemnified by the pilots, without
prejudice to the
criminal liability which the latter may incur.
ARTICLE 835. The action for the recovery of losses and damages arising from
collisions cannot
be admitted if a protest or declaration is not presented within twenty-four hours
before the competent
authority of the point where the collision took place, or that of the first port of arrival
of the vessel, if in
Philippine territory, and to the consul of the Republic of the Philippines if it occurred
in a foreign
country.
ARTICLE 836. With respect to damages caused to persons or to the cargo, the
absence of protest
may not prejudice the persons interested who were not on board or were not in a
condition to make
known their wishes.
ARTICLE 837. The civil liability incurred by the shipowners in the case prescribed in
this
section, shall be understood as limited to the value of the vessel with all its
appurtenances and
freightage earned during the voyage.
ARTICLE 838. When the value of the vessel and her appurtenances should not be
sufficient to
cover all the liabilities, the indemnity due by reason of the death or injury of persons
shall have
preference.
ARTICLE 839. If the collision should take place between Philippine vessels in foreign
waters, or
if having taken place in the open seas, and the vessels should make a foreign port,
the Consul of the
Republic of the Philippines in said port shall hold a summary investigation of the
accident, forwarding
the proceedings to the Secretary of the Department of Foreign Affairs for
continuation and conclusion.
aisadc
SECTION FOUR
SHIPWRECKS
ARTICLE 840. The losses and deteriorations suffered by a vessel and her cargo by
reason of
shipwreck or stranding shall be individually for the account of the owners, the part
which may be saved
belonging to them in the same proportion.
ARTICLE 841. If the wreck or stranding should be caused by the malice, negligence,
or lack of
skill of the captain, or because the vessel put to sea was insufficiently repaired and
equipped, the ship
agent or the shippers may demand indemnity of the captain for the damages caused
to the vessel or to
the cargo by the accident, in accordance with the provisions contained in Articles
610, 612, 614, and
621.
ARTICLE 842. The goods saved from the wreck shall be specially bound for the
payment of the
expenses of the respective salvage, and the amount thereof must be paid by the
owners of the former
before they are delivered to them, and with preference over any other obligation if
the merchandise
should be sold.
ARTICLE 843. If several vessels sail under convoy, and any of them should be
wrecked, 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, without sufficient cause, to receive what may
correspond to him, the
captain of the wrecked vessel shall enter a protest against him, before two sea
officials, of the losses
and damages resulting therefrom, ratifying the protest within twenty-four hours after
arrival at the first
port, and including it in the proceedings he must institute in accordance with the
provisions contained
in Article 612.
If it is not possible to transfer to the other vessels the entire cargo of the vessel
wrecked, the goods of
the highest value and smallest volume shall be saved first, the designation thereof to
be made by the
captain with the concurrence of the officers of his vessel.
ARTICLE 844. A captain who may have taken on board the goods saved from the
wreck shall
continue his course to the port of destination, and on arrival shall deposit the same,
with judicial the
intervention, at the disposal of their legitimate owners.
In case he changes his course, if he can unload them at the port of which they were
consigned, the
captain may make said port if the shippers or supercargoes present and the officers
and passengers of
the vessel consent thereto; but he may not do so, even with said consent, in time of
war or when the
port is difficult and dangerous to make.
The owners of the cargo shall defray all the expenses of this arrival as well as the
payment of the
freightage which, after taking into consideration the circumstances of the case, may
be fixed by
agreement or by a judicial decision.
ARTICLE 845. If on the vessel there should be no person interested in the cargo
who can pay the
expenses and freightage corresponding to the salvage, the competent judge or court
may order the sale
of the part necessary to cover the same. This shall also be done when its
preservation is dangerous, or
when in a period of one year it should not have been possible to ascertain who are
its legitimate
owners.
In both cases the proceedings shall be with the publicity and formalities prescribed in
Article 579, and
the net proceeds of the sale shall be safely deposited, in the discretion of the judge
or court, so that they
may be delivered to the legitimate owner thereof.
TITLE FIVE
PROOF AND LIQUIDATION OF AVERAGES
SECTION ONE
PROVISIONS COMMON TO ALL KINDS OF AVERAGES
ARTICLE 846. Those interested in the proof and liquidation of averages may
mutually agree and
bind themselves at any time with regard to the liability, liquidation, and payment
thereof. cdt
In the absence of agreements, the following rules shall be observed:
1. The proof of the average shall take place in the port where the repairs are made,
should any be
necessary, or in the port of unloading.
2. The liquidation shall be made in the port of unloading, if it is a Philippine port.
3. If the average occurred outside of the jurisdictional waters of the Philippines, or
the cargo has
been sold in a foreign port by reason of an arrival under stress, the liquidation shall
be made in the port
of arrival.
4. If the average has occurred near the port of destination, so that said port can be
made, the
proceedings mentioned in Rules 1 and 2 shall be held there.
ARTICLE 847. In the case where the liquidation of the averages is made privately by
virtue of
agreement, as well as when a judicial authority intervened at the request of any of
the parties interested
who do not agree thereto, all of them shall be cited, and heard, should they not have
renounced this
right.
Should they not be present or should the have no legal representative, the liquidation
shall be made by
the Consul in a foreign port, and where there is none, by the competent judge or
court, according to the
laws of the country and for the account of the proper party.
When the representative is a person well known in the place where the liquidation is
made, his
intervention shall be admitted and shall produce legal effects, even though he be
authorized only by a
letter of the ship agent, the shipper, or the insurer.
ARTICLE 848. Claims for averages shall not be admitted if they do not exceed 5 per
cent of the
interest which the claimant may have in the vessel or in the cargo if it be gross
average and 1 per cent
of the goods damaged if particular average, deducting in both cases the expenses of
appraisal, unless
there is an agreement to the country.
ARTICLE 849. The damages, averages, loans on bottomry and respondentia and
their premiums
and any other losses, shall not earn interest by reason of delay until after the lapse
of the period of
three-days, to be counted from the day on which the liquidation may have been
concluded and
communicated to the persons interested in the vessel, in the cargo, or in both at the
same time.
ARTICLE 850. If by reason of one or more accidents of the sea, particular and gross
averages of
the vessel, of the cargo, or of both, should take place on the same voyage, the
expenses and damages
corresponding to each average shall be determined separately in the port where the
repairs are made, or
where the merchandise are discharged, sold, or utilized.
For this purpose the captains shall be obliged to demand of the expert appraisers
and of the contractors
making the repairs, as well as of those appraising and taking part in the unloading,
repair, sale, or
utilization of the merchandise, that in their appraisements or estimates and accounts
they set down
separately and accurately the expenses and damages pertaining to each average,
and in those of each
average those corresponding to the vessel and to the cargo, also stating separately
whether or not there
are damages proceeding from inherent defect of the thing and not from accident of
the sea; and in case
there should be expenses common to the different averages and to the vessel and
its cargo, the amount
corresponding to each must be estimated and stated distinctly.
SECTION TWO
LIQUIDATION OF GROSS AVERAGES
ARTICLE 851. At the instance of the captain, the adjustment, liquidation, and
distribution of
gross averages shall be held privately, with the consent of all the parties in interest.
For this purpose, within forty-eight hours following the arrival of the vessel at the
port, the captain
shall convene all the person interested in order that they may decide as to whether
the adjustment or
liquidation of the gross average is to be made by experts and liquidators appointed
by themselves, in
which case it shall so done if the interested parties agree.
If an agreement is not possible, the captain shall apply to the competent judge or
court, who shall be the
one in the port where these proceedings are to be held in accordance with the
provisions of this code, or
to the consul of the Republic of the Philippines should there be one, and should
there be none, to the
local authority when they are to be held in a foreign port. cdtai
ARTICLE 852. If the captain does not comply with the provisions of the preceding
article, the
ship agent or the shippers shall demand the liquidation without prejudice to the
action they may bring
to demand indemnity from him.
ARTICLE 853. After the experts have been appointed by the persons interested, or
by the court,
and after the acceptance, they shall proceed to the examination of the vessel and of
the repairs required
and to the appraisal of their cost, separating these losses and damages from those
arising from the
inherent defect of the things.
The experts shall also declare whether the repairs may be made immediately, or
whether it is necessary
to unload the vessel in order to examine and repair it.
With regard to the merchandise, if the average should be visible at a mere glance,
the examination
thereof must be made before they are delivered. Should it not be visible at the time
of unloading, said
examination may be made after the delivery, provided that it is done within forty-eight
hours from the
unloading and without prejudice to the other proofs which the experts may deem
proper.
ARTICLE 854. The valuation of the objects which are to contribute to the gross
average, and that
of those which constitute the average, shall be subject to the following rules:
1. The merchandise saved which are to contribute to the payment of the gross
average shall be
valued at the current price at the port of unloading, deducting the freightage,
customs duties, and
expenses of unloading, as may appear from a material inspection of the same,
without taking the bills
of lading into consideration unless there is an agreement to the contrary.
2. If the liquidation is to be made in the port of departure, the value of the
merchandise loaded
shall be determined by the purchase price, including the expenses until they are
placed on board, the
insurance premium excluded.
3. If the merchandise should be damaged, they shall be appraised at their true value.
4. If the voyage having been interrupted, the merchandise should have been sold in
a foreign port,
and the average cannot be estimated, the value of the merchandise in the port of
arrival, or the net
proceeds obtained at the sale thereof, shall be taken as the contributing capital.
5. Merchandise lost, which constitute the gross average, shall be appraised at the
value which
merchandise of its kind may have in the port of unloading, provided that its kind and
quality appear in
the bill of lading; and should they not appear, the value shall be that stated in the
invoices of the
purchase issued in the port of shipment, adding thereto the expenses and freightage
subsequently
arising. cd
6. The masts cut down, the sails, cables, and other equipment of the vessel
rendered useless for the
purpose of saying it, shall be appraised at the current value, deducting one-third by
reason of the
difference between new and old.
This deduction shall not be made with respect to anchors and chains.
7. The vessel shall be appraised at its true value in the condition in which it is found.
8. The freightage shall represent 50 per cent by way of contributing capital.
ARTICLE 855. The merchandise loaded on the upper deck of the vessel shall
contribute to the
gross average should they be saved; but there shall be no right to indemnity if they
should be lost by
reason of having been jettisoned for common safety, except when the marine
ordinances allow their
shipment in this manner in coastwise navigation.
The same shall take place with that which is on board and is not included in the bills
of lading or
inventories, according to the cases.
In any case the shipowner and the captain shall be liable to the shippers for the
damages from the
jettison, if the storage on the upper deck was made without the consent of the latter.
ARTICLE 856. Provisions and munitions of war which the vessel may have on board,
and the
clothing used by the captain, officers, and crew, shall not contribute to the gross
average.
The clothing used by the shipper, supercargoes, and passenger who may be on
board at the time of the
jettison, shall also be accepted.
Neither shall the goods jettisoned contribute to the payment of the gross averages
which may occur to
the merchandise saved to a different and subsequent risk.
ARTICLE 857. After the appraisement of the goods saved and of those lost which
constitute the
gross average, has been concluded by the experts, the repairs, if any, made on the
vessel, and in this
case, the accounts of the same approved by the persons interested or by the judge
or court, the entire
record shall be turn over to the liquidator appointed, in order that he may proceed
with the distribution
of the average.
ARTICLE 858. In order to effect the liquidation, the liquidator shall examine the
protest of the
captain, comparing it, if necessary, with the log book, and all the contracts which
may have been made
among the persons interested in the average, the appraisements, expert
examinations, and accounts of
repairs made. If, as a result of this examination, he should find any defect in the
procedure which might
injure the rights of the person interested or affect the liability of the captain, he shall
call attention
thereof in order that it may be corrected, if possible, and otherwise he shall include it
in the exordial of
the liquidation.
Immediately thereafter he shall proceed with the distribution of the amount of the
average, for which
purpose he shall fix:
1. The contributing capital, which he shall determine by the value of the cargo, in
accordance with
the rules established in Article 854.
2. That of the vessel in her actual condition, according to the statement of experts.
3. The 50 per cent of the amount of the freightage, deducting the remaining 50 per
cent for wages
and maintenance of the crew.
After the amount of the gross average has been determined in accordance with the
provisions of this
Code, it shall be distributed pro rata among the goods which are to cover the same.
cdasia
ARTICLE 859. The insurers of the vessel of the freightage and of the cargo shall be
obliged to
pay for the indemnification of the gross average, insofar as is required of each one of
the objects
respectively.
ARTICLE 860. If, notwithstanding the jettison of merchandise, breakage of masts,
ropes, and
equipment, the vessel shall be lost running the same risk, no contribution
whatsoever by jettison of
gross average shall be proper.
The owners of the goods saved shall not be liable for the indemnification of those
jettisoned, lost, or
damaged.
ARTICLE 861. If, after the vessel has been saved from the risk which gave rise to
the jettison, it
should be lost through another accident taking place during the voyage, the goods
saved and existing
from the first risk shall continue liable to contribution by reason of the gross average
according to their
value in the condition in which they may be found, deducting the expenses incurred
in saving them.
ARTICLE 862. If, in spite of having saved the vessel and the cargo in consequence
of the cutting
down of masts or of any other damage deliberately done to the vessel for said
purpose, the merchandise
should subsequently be lost or stolen, the captain can not demand of the shippers or
consignees that
they contribute to the indemnity for the average, unless the loss should occur by
reason of an act of the
owner or consignee himself.
ARTICLE 863. If the owner of the jettisoned goods should recover them after having
received
the indemnity for gross average, he shall be obliged to return to the captain and to
the other persons
interested in the cargo the amount he may have received, deducting the amount of
the damage caused
by the jettison and of the expenses incurred in their recovery.
In this case, the amount returned shall be distributed among the vessel and the
persons interested in the
cargo in the same proportion in which they contributed to the payment of the
average.
ARTICLE 864. If the owner of the goods jettisoned should recover them without
having
demanded any indemnity, he shall not be obliged to contribute to the payment of the
gross average
which may have been suffered by the rest of the cargo after the jettison.
ARTICLE 865. The distribution of the gross average shall not be final until it has
been agreed to,
or in the absence thereof, until it has been approved by the judge or court, after an
examination of the
liquidation and a hearing of the persons interested who may be present or of their
representatives.
ARTICLE 866. After the liquidation has been approved, it shall be the duty of the
captain to
collect the amount of the contributions, and he shall be liable to the owners of the
goods averaged for
the damages they may suffer through his delay or negligence.
ARTICLE 867. If the person contributing should not pay the amount of the
contribution at the
end of the third day after having been required to do so, the goods saved shall be
proceeded against, in
the request of the captain, until payment has been made from their proceeds.
ARTICLE 868. If the person interested in receiving the goods saved should not give
security
sufficient to answer for the amount corresponding to the gross average, the captain
may defer the
delivery thereof until payment has been made. aisadc
SECTION THREE
LIQUIDATION OF ORDINARY AVERAGES
ARTICLE 869. The experts whom the court or the person interested may appoint, as
the case
may be, shall proceed with the examination and appraisement of the averages in the
manner prescribed
in Articles 853 and 854, Rules 2 to 7, insofar as they are applicable.
Footnotes