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I
INTRODUCTION
This article examines the interplay between two ancient legal areas encountered in admiralty law, i.e. general average and piracy; the first is a unique indemnification system, to an extent similar to insurance, described as providing in ancient law "security against a certain aspect of the maritime risk, namely that which consists in deliberate sacrifice for the common safety,"1 whilst the second displays the idiosyncratic approach of admiralty law in providing a marine insurance definition of piracy which is to a substantial extent at odds with that in public international law. The recent United Kingdom Supreme Court judgment in The Longchamp2 as well as other judgments on general average are examined within the broad context of the perennial debate as to whether or not that institution should be retained.
A. General Average
General Average has a very long history, and Selmer describes it as 'a venerable institution.'3 It can be traced to Roman law and the lex rhodia de iactu, although there is no definitive proof of the island of Rhodes being the origin of the institution.4 The origin of the word 'average' is also very interesting; the use of the word average came about a long time after the creation of the institution itself, and the authors of the Tenth edition of Lowndes and Rudolf state that 'there are to be found in the Constitutum Usus of the City of Pisa, a code dating from about A.D. 1160, some faint traces of the growth of a technical term out of the common Italian word avere, the having of property.' Another possibility is that the source is the Arabic word 'awar' meaning 'damage'6 and hence the shipping distinction between particular average and general average.
For the purposes of English law, general average has been absorbed 'from without'7 and has been described as an 'equity of foreign origin, which runs somewhat against the grain of English commercial legislation.'8 It has been stated that general average arises as a result of an implied contract ,but Brett M.R. in the Court of Appeal in Burton & Co v. English & Co.9 did not accept this view:
By what law does the right arise to general average contribution? Lord Bramwell in his judgment in Wright v. Marwood considers...
