Over the years massed ranks of lawyers have subjected this classical definition of a general average act to careful analysis but perhaps the least considered element of the definition is “the common maritime adventure”. Of course, there are good reasons for this. Most general average disputes arise between ship and cargo carried in that ship, a situation which almost inevitably gives rise to a common maritime adventure. But what of a tug and tow situation?

Is there any difference in principle between the situation where the cargo is carried on board the ship and one where the “cargo” is towed behind the ship? If the former situation amounts to a common maritime adventure, why not the latter? Common sense may suggest there is no difference, but what is the law?

Surprisingly there is little authority to help us to the solution. Doubtless the problems of tug and tow were not uppermost in the minds of those responsible for Rhodian law or the Rolls of Oleron but by 1974 one might be forgiven for thinking that the problem would have broken surface. If so, the revision of the Rules in 1974 fails to make express provision; indeed the learned authors of Lowndes & Rudolf afford the subject less than one page in the 1975 edition of their bible1 on general average and most of this is taken up by a précis of two decisions of the American courts.

In the first case cited, The J.P. Donaldson,2 the U.S. Supreme Court had to consider a situation where, on a voyage from Buffalo to Bay City, Michigan, the tug had cast off the sailing barges it was towing to save itself from grounding. (Quaere: where was the common safety?). The decision of the court reads:3

The second decision, S.C. Loveland Co. v. U.S.A.4 is described by the learned authors of Lowndes & Rudolf as the more surprising of the two decisions. Once again there seems to be an absence of a “common safety”. Notwithstanding this, the court had no hesitation in finding a general average act when the Loveland 33 was run aground to prevent her sinking.