Article 126p. 126

COMMERCIAL LAWS NEGOTIABLE INSTRUMENTS, CORPORATION, INSURANCE, TRANSPORTATION, BANKING

in the unloading, repair, sale, or the benefiting of the

merchandise, that they separate and detail exactly in

their appraisements or estimates and accounts all the

expenses and damages belonging to each average, and

in those of each average those corresponding to the

vessel and to the cargo, stating also separately whether

there are or not any damages proceeding from the

nature of the goods, and not by reason of a sea accident;

and in case there should be expenses common to the

different averages and to the vessel and her cargo, there

must be calculated the amount corresponding to each

and stated distinctly.

SECTION II 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 call all

the persons 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 this shall be done

should the persons interested agree.

Should an agreement not be possible, the captain shall

apply to the judge or court of competent jurisdiction, who

shall be the one of the port where these proceedings are

to be held in accordance with the provisions of this Code,

or to the consul of Spain, * should there be one, and

otherwise to the local authority when they are to be held

in a foreign port.

ARTICLE 852. If the captain should not comply with the

provisions

contained

in

the

foregoing

article,

the

shipowner or agent or the freighters 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 judge or court, before

the acceptance, an examination of the vessel and of the

repairs required shall be made, as well as an estimate of

their cost, separating these losses and damages from

those arising from the natural vice of the thing.

The experts shall also declare whether the repairs can be

made immediately, or whether it is necessary to unload

the vessel to examine and repair her.

With regard to the merchandise, if the average should be

visible at a mere glance, the examination thereof must be

made before it is delivered. Should it not be visible at the

time of unloading, said examination may be held after

the delivery provided it is done within forty-eight hours

from the unloading and without prejudice to the other

proofs which the experts may deem necessary.

ARTICLE 854. The appraisement of the goods which are

to contribute to the gross average, and that of those

which

constitute

the

average,

shall conform to the

following rules:

1. The merchandise saved which is to contribute to the

payment of the gross average shall be valued at the

current price thereof at the port of unloading, deducting

the freights, customs duties, and charges for unloading,

as may appear from a material inspection of the same,

not taking into consideration the bills of lading, unless

there is an agreement to the contrary.

2. If the liquidation is to take place in the port of sailing,

the value of the merchandise loaded shall be fixed by the

purchase price, including the expenses until they are put

on board, excluding the insurance premium.

3. If the merchandise should be damaged, it shall be

appraised at its true value.

4. If the voyage should be interrupted, the merchandise

having been sold in a foreign port and the average can

not be estimated, there shall be taken as the contributing

capital the value of the merchandise in the port of arrival,

or the net proceeds obtained at the sale thereof.

5. Merchandise lost, which should constitute the gross

average, shall be appraised at the value merchandise of

its kind may have in the port of unloading, provided its

kind and quality appears in the bill of lading; and should

this not be the case, the invoices of the purchase issued

in the port of shipment shall be taken as a basis, adding

to its value the expenses and freights subsequently

arising.

6. The masts cut down, the sails, cables, and other

equipment of the vessel rendered useless for the purpose

of saving her, 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 in regard to anchors

and chains.

7. The vessel shall be appraised at her real value in her

condition at the time.

8. The freights 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

it be saved; but there shall be no right to indemnity if it

should be lost by reason of being jettisoned for general

safety, except when the marine ordinances allow its

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 freighters for the loss of the jettison, if the storage on

the upper deck took place without the consent of the

latter.

ARTICLE 856. Provisions and munitions of war which the

vessel may have on board shall not contribute to the

gross average, nor the clothing used by the captain,

officers, and crew.

There shall also be excepted the clothing used by the

freighters, supercargoes, and passengers who may be on

board at the time of the jettison.

Neither shall the goods jettisoned contribute to the

payment of the gross averages which may occur to those

saved in a different and subsequent risk.

ARTICLE 857. After the appraisement of the goods saved

has been concluded by the experts, as well as that of the

goods lost which constitute the gross average, and after

the repairs have been made to the vessel, should any

have to be made, and in such case after the approval of

the accounts of the same by the persons interested or by

the judge or court, the entire record shall be turned 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 sworn statement of the

captain, comparing it, if necessary, with the log book and

all the contracts which may have been made between

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

this procedure which might injure the rights of the

persons interested or affect the liability of the captain, he

shall call attention thereto in order that it be corrected, if

possible,

and

otherwise

he

shall

include

it

in

the

preliminaries 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.

© Compiled by RGL

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