Genesis of the General Average Institution in International Maritime Private Law (Historical and Legal Context)

This article is devoted to the study of the institution of general average in different historical periods and in the legislation of different states. The article also takes into account the influence of the principles of transport safety and general benefit on the formation of a legal approach to determining general average, and also analyzes the relevant paragraphs of the York-Antwerp Rules. One of the authors’ tasks is to consider the institution of general average in the historical and legal context. The objectives of the study also include questions about how the YAR requirements were formulated for an act to be considered general average, and an assessment of the appropriateness or inappropriateness of maintaining the institution of general average in modern maritime international law. The assigned tasks involve the use of a problem-chronological method and techniques of comparative legal analysis. The authors propose to consider general average as a legal institution that developed over different time periods. The first of them is antiquity. Geographically, the study of the origins of general average in the article is limited to the Mediterranean and legally to Roman law, its reception and the norms of English admiralty law. The emergence of the institution of general average was a natural development of the law of the sea in terms of trade, technology, political and social development, and legal development in general. A review of the legal norms related to the institution of general average and an analysis of judicial practice suggest that general average at the present time is the best option for the fair distribution of unforeseen damage and expenses arising during maritime transportation. At the same time, the authors acknowledge the validity of theories that criticize the institution of general average for the long period of resolving claims, the lack of uniformity in the legal procedure and the high cost.