Offshore Marine Services Alliance Pty Ltd (Offshore Marine) was the disponent owner of the barge JMC 2822 and the tug Miclyn Venture. Chevron Australia Pty Ltd (Chevron) contracted with Offshore Marine to carry construction materials on the JMC 2822 from the Australian marine complex in Henderson, Western Australia, to Barrow Island, Western Australia. Leighton Contractors Pty Ltd (Leighton) and Thiess Pty Ltd (Thiess) contracted with Chevron to supply the goods and services.

The JMC 2822 grounded on Ronsard Rocks off the coast of Western Australia. Offshore Marine incurred expenses exceeding AUD 4 million to secure the common safety of the JMC 2822 and the cargoes. Offshore Marine submitted that these expenses were extraordinary, voluntary, and reasonable.

Offshore Marine claimed an entitlement to a general average contribution towards the expenses from Leighton and Thiess in proportion to the values of their respective cargoes. Leighton and Theiss denied liability to contribute in general average, as ownership had passed to Chevron.

Offshore Marine argued that the obligation to contribute to general average was not limited to cargo owners. This obligation fell on 'parties interested'. The fundamental principle was that all those sharing the risks of a maritime adventure should contribute rateably to any extraordinary sacrifice or expenditure necessary to ensure its success. The title may have passed to Chevron. However, Leighton and Thiess remained 'on risk' in the manner provided for in each of their contracts with Chevron.

Offshore Marine submitted that the York-Antwerp Rules espoused a similar principle, that the obligation to contribute was imposed not on cargo owners, but on parties interested. This principle was originally introduced as r B to the 1924 version of the York-Antwerp Rules, following r B of the 1890 version. It was subsequently incorporated into r A since the 1994 version, which states that '[g]eneral average sacrifices and expenditures shall be borne by the different contributing interests on the basis hereinafter provided'. The York-Antwerp Rules represent a codification of the common law practice.

Leighton and Thiess argued that the word 'interests' was compendious shorthand for 'interests' in the ship, freight and cargo. The nature of the relevant interest in each instance was expressed in terms of ownership. They contended that the obligation to contribute to general average was limited to cargo owners or persons who had contracted to contribute to general average.

Offshore Marine argued that the circumstances gave rise to a general average claim. Leighton and Thiess rejected this argument. The parties raised this issue as a two-part preliminary question:

A. If, in respect of any cargo referred to as Leighton's cargo or Thiess' cargo and with reference to the time of any general average sacrifice or expense ultimately established:

1. It is not proven that Leighton or Thiess was the owner; and

2. It is proven that Leighton and Thiess were 'responsible for the care, custody, control and safekeeping and preservation';

does that interest in the cargo attract liability to contribute to such general average sacrifice or expense?

B. If the answer to question A is 'yes', is that interest equivalent to the value of the relevant cargo or is it to be assessed on some other basis and, if so, what basis?

Held: The answer to 'A' is 'No', and the answer to 'B' does not arise.

The liability to contribute in general average attaches to the owner of the relevant freight or cargo that benefited from the general average, sacrifice and expense or contractual obligation to the general average claimant in circumstances governed by a bill of lading or by a general salvage bond. It is more complex to determine liability issues for parties with an 'interest' of different sorts in the cargo than cargo owners.

The shipowner is entitled to sue the owners of surviving cargo to recover contributions (see eg Richard Cornah and John Reeder (eds), Lowndes & Rudolf: The Law of General Average and The York-Antwerp Rules (14th edn, Thomson Reuters, 2013) para 30.58). When cargo ownership changes during the voyage, the liability rests with the person who is the cargo owner at the time of the sacrifice or expenditure. In the absence of any agreement to the contrary, a charterer is not liable to pay cargo's contribution upon cargo not owned by it (ibid para 30.64).

The House of Lords in Hain Steamship Co Ltd v Tate & Lyle Ltd [1936] 2 All ER 597, 602 (Lord Atkin) held that:

I think it clear that on principle the contribution falls due from the persons who were owners at the time of the sacrifice: though no doubt it may be passed on to subsequent assignees of the goods by appropriate contractual stipulations.

Lord Atkin's judgment was followed in Castle Insurance Co Ltd v Hong Kong Islands Shipping Co Ltd [1984] 1 AC 226, 235.

There had been no case where a non-owner who bears some contractual risk in cargo vis-à-vis its owner, and who does not have any contract with the general average claimant, had been found liable to contribute in general average (cp Scaife v Tobin 110 ER 189, 191; Walford De Baerdemaecker & Co v Galindez Brothers (1897) 2 Com Cas 137, 143; Hain Steamship Co Ltd v Tate & Lyle Ltd [1936] 2 All ER 597, 602; Castle Insurance Co Ltd v Hong Kong Islands Shipping Co Ltd [1984] 1 AC 226, 233-234).