GR L 13695; (October, 1921) (CRITIQUE)
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THE AI-ASSISTED CRITIQUE
The Court’s analysis correctly identifies the shift from the traditional rule against general average contribution for deck cargo, rooted in the York-Antwerp Rules and older maritime practices, to a more permissive standard for coastwise trade under the Spanish Commercial Code. However, the opinion insufficiently grapples with the doctrinal tension created by applying Article 855, which generally denies indemnity for jettisoned deck cargo, alongside Article 809(3), which creates an exception when marine ordinances permit such carriage. The reasoning relies heavily on general custom and public policy to encourage domestic trade, but it provides a thin textual anchor for overriding the Code’s default prohibition, risking a precedent that may undermine statutory hierarchy in favor of judicial policy-making. The Court’s analogy to gasoline carriage regulations, while pragmatic, is a weak substitute for explicit statutory authorization for petroleum, leaving the holding vulnerable to criticism for extending exceptions beyond clearly delineated legal boundaries.

In establishing the shipowner’s liability for the captain’s failure to initiate general average proceedings under Article 852, the Court properly links the owner’s civil liability under Article 586 to this specific statutory duty. Yet, the opinion glosses over a critical ambiguity: whether the charter party’s terms, which limited the charterer’s control over the captain to specifying voyages and requesting discipline, effectively insulated the owner from liability for the captain’s post-jettison administrative failure. By not rigorously analyzing if this failure constituted an “act of the master” in navigation and safety (for which the owner is clearly liable) or a separate commercial/administrative duty potentially altered by the charter, the Court misses an opportunity to clarify the scope of owner liability in mixed charter arrangements. This conflation weakens the otherwise sound application of the abandonment principle under Articles 587-588 as the owner’s sole escape from liability.

The procedural holding that liquidation of general average is not a condition precedent to suit, while practical for shippers, creates potential for inconsistent valuations and premature litigation. The Court prioritizes equity and access to remedy by allowing a direct action against the shipowner, but it does so without establishing clear safeguards or guidelines for calculating the contributory value of the ship and saved cargo absent a formal adjustment. This approach, though efficient in this case, may encourage circumvention of the coordinated process envisioned by the Code, leading to fragmented claims and increased judicial burden in future disputes. The opinion would be strengthened by outlining minimum evidentiary standards or requiring a reference to adjusters, ensuring that the substantive right to contribution does not devolve into speculative damages litigation.