[thaumasiotes]

> General Average, a fundamental maritime principle that goes back millennia to the Code of Hammurabi in 1755 BC, at least.

Sorry? What does Hammurabi's Code say about this?

Law 238 apparently says that sinking and refloating a ship incurs a penalty equal to half the value of the ship, but that doesn't seem to bear much relationship to general average. It doesn't mention loss of goods and the penalty amount is not related to the loss amount. And all of the penalty falls on the ship operator.

Law 237 is much closer, but as far as I can see, to the extent that averaging is relevant to this case, the law explicitly rejects it:

> If a man hire a sailor and his boat, and provide it with corn, clothing, oil and dates, and other things of the kind needed for fitting it: if the sailor is careless, the boat is wrecked, and its contents ruined, then the sailor shall compensate for the boat which was wrecked and all in it that he ruined.

( http://www.general-intelligence.com/library/hr.pdf )

> If a man hire a boatman and a boat and freight it with grain, wool, oil, dates or any other kind of freight, and that boatman is careless and he sink the boat or wreck its cargo, the boatman shall replace the boat which he sank and whatever portion of the cargo he wrecked.

( https://en.wikisource.org/wiki/The_Code_of_Hammurabi_(Harper... )

This makes ship operators personally liable for the full value of lost cargo, if they are "careless". I don't see any provision dealing with the (monetary) losses associated with the necessary (physical) loss of cargo.

[CalChris]

I probably should have said had antecedents rather than goes back to. The point of 238 is a shared burden between the owner and the charterer in the case of a salvage.

[thaumasiotes]

> The point of 238 is a shared burden between the owner and the charterer in the case of a salvage.

This is not obvious. From what appears to be a very literal translation at https://www.cdli.ucla.edu/search/search_results.php?SearchMo... :

> If a boatman [] has caused [a man’s boat] to sink and has raised it, silver of half of its value he shall give

I have no expertise and no opinion on how "raising" a boat might refer to either, neither, or both of refloating or salvaging the boat.

But it seems fair to read Law 238 in the context of the two laws it follows:

> 236. If a man hire his boat to a boatman and the boatman be careless and he sink or wreck the boat, the boatman shall replace the boat to the owner of the boat.

> 237. If a man hire a boatman and a boat and freight it with grain, wool, oil, dates or any other kind of freight, and that boatman is careless and he sink the boat or wreck its cargo, the boatman shall replace the boat which he sank and whatever portion of the cargo he wrecked.

> 238. If a boatman sink a man's boat and refloat [raise] it, he shall give silver to the extent of one-half its value.

This is a straightforward set of elaborations on a basic theme, as frequently occurs in the code. So the law says:

1. If you sink someone else's boat, you replace the boat.

2. If there was cargo on the boat, you have to replace that too.

3. If you sink the boat, but then you recover it, you don't have to replace the whole boat. [Which makes sense, because the whole boat hasn't been lost. Replacing the whole thing wouldn't be fair.] But a boat that's been sunk can be safely assumed to have taken some damage. So you pay for half of it.

That's not a sharing of the burden between the owner and the operator. It's assessing -- against the operator -- a customary judgement that is notionally equal to the value of the harm that the operator caused. None of the burden is being assigned to the owner, and all of the burden is being assigned to the operator.