The Public Certification in The Maritime Navigation Act, by Carlos Cerdá

General Average

If the settlement of the general average is agreed on in the clauses of the bills of lading that settlement should be done privately by the parties concerned, it constitutes a full binding agreement between them. In the absence of such agreement, the private settlement of the general average is not enforceable against the interested parties, who will be able to discuss it throughout the appropriate legal proceedings.

In the absence of a private settlement, the interested parties are entitled to settle the General Average according to the procedures of Articles 506-511 of the Maritime Navigation Act ( hereinafter LNM).

Obviously, the liquidation proceedings set forth in those articles are not common since it is normal that these proceedings are normally handled privately by renowned liquidators.

Should this not happen or should no agreement be reached regarding the private settlement of the general average, any person with interest in maritime voyage may submit a written request to a notary public to record a statement of facts expressing the damages and expenses incurred, attaching the documents that support said request and a list naming the parties holding an interest therein. We believe that only one notary public shall be competent to hear the proceedings, so if another notary is subsequently required, he should reject any request to act.

The notary, after notifying the interested parties about their right to intervene in the proceedings, shall appoint a liquidator, who will present a report with a settlement proposal or a report refusing any settlement if he understands that there is no general average. This report will be delivered to the parties, who are entitled to challenge it within 30 days, and these challenges will be submitted to the liquidator, who, within 30 days, shall submit his final report to the notary. The notary, after examining both the report and the allegations submitted by the interested parties, will issue a reasoned resolution, which is a sufficient title to dispatch enforcement against the parties concerned who do not pay the contribution stated in the decision within the term of 15 days.

The notarial resolution may be appealed with suspension effects before the Commercial Court of the place in which the carriage is completed.