Private admiralty law: piracy general average

• Grant number: 14/50145-8
• Support Opportunities: Scholarships in Brazil - Post-Doctoral
• Start date: June 01, 2014
• End date: May 31, 2017
• Field of knowledge: Applied Social Sciences - Law - Private Law
• Principal Investigator: Fernando Campos Scaff
• Grantee: Rodrigo de Lima Vaz Sampaio
• Host Institution: Faculdade de Direito (FD). Universidade de São Paulo (USP). São Paulo , SP, Brazil

Abstract

General average is a specific Admiralty Law institution of great importance for civilliability. It means the damage or expense with ship or cargo in order to save both. Its main effect is the splitting damages between the involved parts (contribution), which is an exception to the principle of res perit domino. The Lex Rhodia de iactu (D.14, 2) was the legal statute that inspired the forthcoming rules about genera average. Beside the jettison, it rules a case of general average related to piracy: the payment of the ransom of the hip to pirates (Paul. 34 ad ed., D. 14, 2, 2, 3). Based on this text, a legal tradition that leads to (764, 1, 7 and 8) of the Brazilian Commercial Code ha begun. As cases of general average, it determines not only the payment of ransom to pirates for retake the ship, his cargo, and for the salvation of the members of the crew, but also the expenses with injuries and damage for death of crew members, derived from the defense of the ship. However, the YAR (Yorl-Antwerp Rufes) 2004 that rules the hypothesis on international level (uniform law), o not foresees these cases of general average. It is possible to make a legal reconstruction of the relationship between general average and piracy since Roman Law until the main rules of the Codes in order to evaluate its relevance, aptness and eventually propose a new text on national (Brazilian Commercial Code) or international level (YAR 2004). (AU)