General average and cargo interests.

In Offshore Marine Services Alliance Pty Ltd v Leighton Contractors Pty Ltd and Another [2017] FCA 333 the Federal Court of Australia was called on to  decide whether parties interested in the cargo, other than the cargo owners at the date of the GA incident, were liable to contribute in general average. A tug and barge carrying construction materials grounded on its voyage from Henderson to Barrow Island and the disponent owner of the barge and tug incurred expenses and costs in securing the common safety of the barge and the cargo, including costs of some Aus $4m associated with stabilising the damaged hull of the barge, re-floating it and towing it back to Henderson with the cargo intact and undamaged.

The disponent owners claimed GA contributions from Leighton and Thiess who had supplied the cargo pursuant to contracts with Chevron. At the time of the incident ownership in the cargo had passed to Chevron, but the disponent owners claimed that Leighton and Thiess had a relevant interest in the goods because under their contracts they remained “on risk” in respect of the goods, and/or were “responsible for the care, custody, control, safekeeping and preservation of” the goods prior to their acceptance by Chevron.

McKerracher J held that a liability to contribute in GA attached only to the owner of the cargo that benefitted from the general average act, or someone contractually liable to contribute would be liable to contribute.