A general average file opened after a grounding in January rarely closes within three years. The adjustment arrives after twenty-eight months, the cargo interest challenges it, discussion begins, and that is the moment the carrier raises a bar: the claim against it has been time barred for seventeen months. The general average file, meanwhile, is still open. The two periods share neither their length, nor their starting point, nor their purpose.
This page takes apart the three clocks running in parallel in a general average file under French law, then looks at whom recourse is usefully directed against, what obstacles it meets, and before which court it is brought.
1. Three clocks, three starting points
The first clock is general average itself. Article L. 5133-17 of the French Transport Code provides that any action deriving from general average is barred after five years from the date on which the adventure ended. It covers the contribution demand, its challenge, an application to have an item allowed, and proceedings against a defaulting contributor.
The second is the carrier’s liability. Article L. 5422-18 bars the action against the carrier for loss or damage after one year. It covers the recourse of a cargo interest who considers that the event behind the sacrifice arose from fault or unseaworthiness.
The third is contractual, where the adjustment is subject to the York-Antwerp Rules in their 2004 or 2016 version. Rule XXIII confines the claim for contribution to one year from the date on which the general average adjustment was issued, and in any event six years from the termination of the common maritime adventure, whichever comes first.
The confusion arises because the three do not start from the same event. The first runs from the end of the adventure, the second from delivery or the date when delivery should have taken place, the third from the issue of a document that does not yet exist when the file opens. A table of time limits kept from day one, and updated at each stage, is the only reliable way of not losing one of them.
2. Five years, but from exactly when
The starting point set by Article L. 5133-17 is neither the date of the casualty, nor the date of the general average declaration, nor the date the account was issued. It is the date on which the adventure ended. On an ordinary voyage that coincides with discharge at the port of destination. In a general average file it is almost always arguable.
Three configurations recur. The first is the interrupted voyage: the vessel is detained at a port of refuge and will go no further. The adventure then ends at that port, not at the destination named in the bill of lading. The second is transhipment: the cargo is forwarded on another vessel, and the question arises whether the original adventure ended at transhipment or continued to arrival. The third is cargo discharged on very different dates over several calls, which sets different periods running for different cargo interests.
The stake is immediate. Article L. 5133-8 ties the valuation of the vessel to the port where the adventure ends, and Article L. 5133-9 ties the valuation of damage to the vessel there as well. The date of ending therefore governs both the time bar and two items of the calculation. An adjustment that adopts a date of ending favourable to the owner for valuation purposes cannot adopt another for the time bar, and the inconsistency, where it exists, is an argument.
3. One year against the carrier, and the three months for recourse
Article L. 5422-18 is the provision most often fatal in these files. It bars the action against the carrier for loss or damage after one year, and it states that the period may be extended by an agreement made between the parties after the event giving rise to the action. That possibility of extension is the practical key: asked for at the right moment, it costs an exchange of letters and it preserves the recourse while the adjustment is being prepared.
The same provision adds that recourse actions may be brought, even after that period, for three months from the day the indemnified party was itself sued or settled the claim amicably. That further period is short, and its starting point is objective: it runs from the writ received or the settlement agreed, not from discovery of the loss.
Its third paragraph deserves careful reading: whatever its basis, the liability action against the carrier for loss or damage may be brought only under the conditions and within the limits set by that section. In other words, the one year bar cannot be escaped by recharacterising the claim, for instance by founding it in tort. The attempt is made regularly, and regularly fails.
One practical consequence follows. Waiting for the adjustment is never a reason to wait before proceeding against the carrier. The final amount of the contribution is not a precondition: the claim is preserved by a writ or by an extension agreement, and the quantum is calculated later.
4. The contractual time bar in the York-Antwerp Rules
Rule XXIII of the York-Antwerp Rules, introduced in the 2004 version and carried into 2016, is the one cargo interests discover last. It confines the claim for contribution to one year from the date on which the adjustment was issued, and in any event to six years from the termination of the common maritime adventure, whichever comes first.
Two effects follow, and they cut both ways. Against the cargo interest, the one year period starts to run as soon as the account is issued, leaving little time to have it analysed, gather the papers, quantify the objections and start proceedings. In the cargo interest’s favour, the same period binds the owner: a contribution demand made more than a year after the adjustment was issued meets the same bar, and the point is rarely taken.
How that combines with French law requires attention. The provisions of the general average chapter are default rules, as Article L. 5133-1 says expressly by reserving contrary stipulations of the interested parties. A contractual period shorter than the five year one may therefore apply. But the same article deems unwritten any statement by which the carrier reserves, in a bill of lading, provisions other than those of the chapter. The line between the regular incorporation of a body of rules and a unilateral reservation slipped into a document of adhesion is arguable, and all the more so when it has been spotted early.
A last point of vigilance: Rule XXI on interest was the subject of a technical amendment adopted by the Comite Maritime International at its conference in Antwerp in October 2022. The rules are therefore now cited with that update, and an account drawn up under the earlier wording should be checked on this point.
5. Whom recourse is usefully directed against
Article L. 5133-5 sets the basic rule: where the event that caused the average results from fault committed by one of the parties engaged in the adventure, a general average adjustment still takes place, subject to recourse against the party to whom that fault is attributable. Rule D of the York-Antwerp Rules is to the same effect: rights to contribution are not affected by the fault of a party, without prejudice to any remedies or defences open against or to that party.
The mechanism is therefore in two stages, and its logic has to be accepted: you contribute first, you pursue afterwards. Four possible defendants present themselves. The carrier first, where the event arises from unseaworthiness or fault in the care of the cargo. That is the most natural recourse, and the one with the shortest period. The shipowner next, where it is not the contractual carrier, a frequent situation in time chartering where the charterer issues the bills of lading. The salvor, more rarely, where the salvage operations aggravated the damage. And the underwriter, that of the cargo under the goods policy, which in principle covers the contribution up to the sum insured.
The choice between those defendants is not neutral, because it determines the applicable period. Recourse against the carrier follows the one year period of Article L. 5422-18. The contribution claim follows the five year period of Article L. 5133-17 or the contractual period in Rule XXIII. Recourse against the cargo underwriter follows the two year prescription of French insurance law. A file run without distinguishing those bases becomes time barred piece by piece.
6. Limitation of liability, the obstacle discovered too late
A recourse that is perfectly well founded and brought in time can still run into a ceiling. The London Convention of 19 November 1976 on limitation of liability for maritime claims allows the shipowner, and more broadly the persons it designates, to limit their liability by constituting a fund calculated by reference to the tonnage of the vessel.
A decision of the Commercial Chamber of the French Court of Cassation of 9 July 2013 settled one decisive point. In a case arising from the grounding of a container ship off a Syrian port, the vessel having been declared in general average by her owner, the Court upheld the appeal court in holding that the limitation fund provided for in Article 11.1 of the convention may be constituted preventively, on the initiative of any person whose liability may be engaged, such as the maritime carrier, without any requirement that that liability have first been pursued by proceedings brought for that purpose.
The practical consequence is blunt. An owner or carrier anticipating a wave of claims can cap its exposure before being sued at all, and creditors then share a fund whose amount bears no relation to the extent of their actual losses. On a major casualty the sum of the claims often far exceeds the fund, and the recourse, even won, pays only a dividend.
Two reflexes follow. The first is to check without delay whether a fund has been constituted and before which court, because the distribution procedure imposes its own filing deadlines. The second is not to overestimate the value of a recourse against the carrier on a large casualty, and to give priority to what can be won on the account itself, where no ceiling of that kind applies to a challenge to the classification.
7. Which court, and the trap of lis pendens
Jurisdiction is determined first by the contract. A jurisdiction clause in the bill of lading, or an arbitration clause in a charterparty, governs where proceedings are brought, and the average bond itself sometimes contains one, which is a further reason to read it before signing.
Failing that, Article R. 5133-3 offers an anchor specific to general average: absent agreement between the parties on the adjustment, average adjusters are appointed by the president of the commercial court or, failing that, of the judicial court of the last port of discharge, and where that port lies outside France, by the president of the court of the vessel’s port of registry. Article R. 5133-4 then provides that an adjustment not accepted amicably by all the interested parties is submitted to the court for approval, on the application of the most diligent party.
There remains the risk peculiar to multiparty files spread across several states. The Court of Justice ruled on this point on 19 May 1998 in Drouot assurances v Consolidated metallurgical industries, case C-351/96. It held that the lis pendens rule does not apply to two claims for contribution to general average, one between the hull underwriter of a vessel that sank and the owner of the cargo on board and its insurer, the other between those two and the owner of the vessel and its charterer, unless it is established that, with regard to the subject matter of the two disputes, the interests of the hull underwriter on the one hand and those of its insured on the other are identical and indissociable.
In other words, identity of parties is not presumed from the insurance relationship alone, and proceedings started abroad by the hull underwriter do not necessarily displace a French court seised by the cargo interests. That is a useful answer to a lis pendens objection raised to gain time or to move the dispute to a forum more favourable to the owners.
The firm has prepared a practical guide containing a time limit calendar to be completed as soon as the file opens, template requests for extension of the one year period, and the procedure for challenging the adjustment step by step. It is available on the page Download the General Average guide. How the firm works on these files is set out on the page general average lawyer, and the wider practice on the page maritime law.
Frequently asked questions
Does the five year period give me time to wait for the adjustment?
For the contribution claim, yes. For recourse against the carrier, no. Article L. 5422-18 bars that action after one year, and waiting for the account does not suspend it. The step to take at once is a request for extension by agreement, which the same provision expressly permits for any agreement made after the event. Failing agreement, a protective writ is needed, with the quantum calculated later.
Can I found my claim in tort to escape the one year bar?
No. The third paragraph of Article L. 5422-18 states that, whatever its basis, the liability action against the carrier for loss or damage may be brought only under the conditions and within the limits set by that section. Recharacterisation therefore has no effect on the period. The attempt is frequently made, and it fails.
When is the adventure treated as having ended?
At discharge at the port of destination on a normal voyage. Where the vessel is detained at a port of refuge and will go no further, the adventure ends at that port. With transhipment, or discharge staggered over several calls, the date is arguable and may differ between cargo interests. It governs both the time bar in Article L. 5133-17 and, through Articles L. 5133-8 and L. 5133-9, two items of the calculation.
A limitation fund has been constituted, is my recourse still worth bringing?
Yes, but its yield changes. The Commercial Chamber held on 9 July 2013 that the fund under Article 11.1 of the London Convention of 19 November 1976 may be constituted preventively by any person whose liability may be engaged, without prior proceedings against it. Creditors then share a capped amount. Priority shifts towards challenging the general average account, where no ceiling of that kind applies.
Proceedings were started abroad by the hull underwriter, is the French court displaced?
Not automatically. In case C-351/96, decided on 19 May 1998, the Court of Justice held that the lis pendens rule does not apply between two claims for contribution to general average involving the hull underwriter and the cargo interests, unless it is established that the interests of the underwriter and those of its insured are, as regards the subject matter of the disputes, identical and indissociable. Identity of parties is not inferred from the insurance relationship alone.
On the same guide, on the account itself: General average contribution, security and adjustment. On releasing the cargo: Average bond and average guarantee. On sorting the items of the account: What is allowed in general average, and what stays with you.