The York-Antwerp Rules 2016 were adopted by the Comité Maritime International in May 2016 without any resistance from any interests. The marine insurance industry was instrumental in revision. The 2004 rules were not accepted by ship owners. Even the Baltic and International Maritime Council did not want to incorporate the 2004 rules into its standard contracts. On approval by the CMI, BIMCO received the 2016 version with open arms. In this article, it is intended to generally discuss the York Antwerp Rules 2016 ()lettered rules), analyzing also the changes which were caused to the 1994 versions.
Rule of Interpretation
In the adjustment of general average the following Rules shall apply to the exclusion of any law and practice inconsistent therewith.
Except as provided by the Rule Paramount and the numbered Rules, general average shall be adjusted according to the lettered Rules.
Rule Paramount In no case shall there be any allowance for sacrifice or expenditure unless reasonably made or incurred.
Rule A
1. There is a general average act when, and only when, any extraordinary sacrifice or expenditure is intentionally and reasonably made or incurred for the common safety for the purpose of preserving from peril the property involved in a common maritime adventure.
2. General average sacrifices and expenditures shall be borne by the different contributing interests on the basis hereinafter provided.
Thus, there are no changes in Rule of Interpretation, Rule Paramount & Rule A. The rule clearly states the way the situation of general average would be handled instead of any rules which are inconsistent. It also states that the GA would be adjusted according to the lettered rules except where a situation is directly addressed by by the Rule Paramount and the Numbered Rules.
The constituents of a GA act are:
- there is extraordinary sacrifice or expenditure;
- act is intentional;
- act is reasonable;
- act is done for the common safety;
- act is one for the purpose of preserving from peril the property; and
- The property involved is in a common maritime adventure.
The various stake holders, thus, shipowner, cargo owners, insurers, etc will be affected by the act. The contribution will be decided by the GA adjuster. The idea being the ship and cargo is brought to safety by say jettisoning ‘A’s cargo, why should only ‘A’ suffer? Everyone who is benefited the act must contribute.
Rule B
1. There is a common maritime adventure when one or more vessels are towing or pushing another vessel or vessels, provided that they are all involved in commercial activities and not in a salvage operation. When measures are taken to preserve the vessels and their cargoes, if any, from a common peril, these Rules shall apply.
In 1994 version the relationship between disconnecting and peril was ambiguous and implied and was not clear cut, whereas 2016 version provides a clearer indication of disconnection to be a general average act in the tug and tow case. This id stated in paragraph 2.
Thus, “If the vessels are in common peril and one is disconnected either to increase the disconnecting vessel’s safety alone, or the safety of all vessels in the common maritime adventure, the disconnection will be a General Average act”.
Para 3 is added in 2016 version. It states, “Where vessels involved in a common maritime adventure resort to a port or place of refuge, allowances under these Rules may be made in relation to each of the vessels. Subject to the provisions of paragraphs 3 and 4 of Rule G, allowances in general average shall cease at the time that the common maritime adventure comes to an end.”
Paragraph 3 refers to situation of port of refuge. If the tug and tow are detained at a port of refuge whilst repairs are done to the tow, necessary for the safe prosecution of the voyage, the port charges, crew wages, maintenance and fuel and store in respect the tug will be allowed in general average. Similarly, if the detention is on account of repair to the tug, the port charges, wages, etc during the period of detention of the tow will be allowed in general average.
Rule C & D are same and have not changed.
Rule C
1. Only such losses, damages or expenses which are the direct consequence of the general average act shall be allowed as general average.
2. In no case shall there be any allowance in general average for losses, damages or expenses incurred in respect of damage to the environment or in consequence of the escape or release of pollutant substances from the property involved in the common maritime adventure.
3. Demurrage, loss of market, and any loss or damage sustained or expense incurred by reason of delay, whether on the voyage or subsequently, and any indirect loss whatsoever, shall not be allowed as general average.
Thus, the connectivity of an event with GA must be direct so that it can be allowed as GA. Apparently, the claims on damage caused by pollution to shoreline, fisheries, recreational organizations, etc will not be allowed but then if by Rule I, Jettison of Cargo states: “No jettison of cargo shall be allowed as general average, unless such cargo is carried in accordance with the recognized custom of the trade.” The cost of cargo jettisoned should be allowed and thereafter connectivity of other expenses will have to be established. Controversy caused here in respect of marine pollution is a matter of discussion. During the period of GA act if there is any loss of market, the same is not allowed.
Rule D
Rights to contribution in general average shall not be affected, though the event which gave rise to the sacrifice or expenditure may have been due to the fault of one of the parties to the common maritime adventure, but this shall not prejudice any remedies or defences which may be open against or to that party in respect of such fault.
The fault of one of the parties may refer to mistake, oversight or intentional fraud. Two things are made clear in this respect:
1. Right to contribute is not affected.
2. Remedies, say right to limitation of liability, etc are not affected.
Rule E
1. The onus of proof is upon the party claiming in general average to show that the loss or expense claimed is properly allowable as general average.
Thus, it follows the general rule that to claim benefit one must establish the authenticity of the cause.
2. All parties to the common maritime adventure shall, as soon as possible, supply particulars of value in respect of their contributory interest and, if claiming in general average, shall give notice in writing to the average adjuster of the loss or expense in respect of which they claim contribution, and supply evidence in support thereof.
3. Failing notification, or if any party does not supply particulars in support of a notified claim, within 12 months of the termination of the common maritime adventure or payment of the expense, the average adjuster shall be at liberty to estimate the extent of the allowance on the basis of the information available to the adjuster. Particulars of value shall be provided within 12 months of the termination of the common maritime adventure, failing which the average adjuster shall be at liberty to estimate the contributory value on the same basis. Such estimates shall be communicated to the party in question in writing. Estimates may only be challenged within two months of receipt of the communication and only on the grounds that they are manifestly incorrect.
The YAR 1994 states that the parties claiming GA must give notice of a claim in general average within 12 months, measured from the date of the termination of the common maritime adventure, or request from the adjuster. Rule states further that and the average adjuster will be at liberty to make an estimate of allowances or contributory values upon expiry of the 12 months of his requesting for such evidence and particulars. The adjuster’s estimate may be challenged only on grounds that it is manifestly incorrect.
The YAR 2016 on the other hand, additionally wants all parties of common maritime adventure to notify GA adjuster of value in respect of contributory interests. This places a higher responsibility on various parties and would help speed up the adjusting process, The estimates taken by GA adjuster shall be conveyed to all parties. The parties are allowed to challenge the adjuster’s estimates within 2 months of receipt of same.
In E a paragraph 4 is added. Thus, any party pursuing a recovery from a third party shall advise the average adjuster and supply full particulars within 2 months upon receipt of the recovery achieved. The adjuster should take note ensuring that any allowable credit to the general average is made in the appropriate manner.
4. Any party to the common maritime adventure pursuing a recovery from a third party in respect of sacrifice or expenditure claimed in general average, shall so advise the average adjuster and, in the event that a recovery is achieved, shall supply to the average adjuster full particulars of the recovery within two months of receipt of the recovery.
Thus, if the consignment belonging to party ‘A’ was jettisoned and subsequently ‘A’ pursued recovery from say shipowner or the insurer, the details must be given to the GA adjuster of:
1. the process of pursuance; and
2. full details of recovery within 2 months of recovery.
Rule F is the same.
Any additional expense incurred in place of another expense which would have been allowable as general average shall be deemed to be general average and so allowed without regard to the saving, if any, to other interests, but only up to the amount of the general average expense avoided.
Thus, say in case of a GA, an additional expense of 500 dollars was allowed. Instead of that expense an alternate expenditure of 450 Dollars was incurred. The expenditure of 500 Dollars would be allowed.
Rule G
1. General average shall be adjusted as regards both loss and contribution upon the basis of values at the time and place when and where the common maritime adventure ends.
2. This rule shall not affect the determination of the place at which the average adjustment is to be prepared.
3. When a ship is at any port or place in circumstances which would give rise to an allowance in general average under the provisions of Rules X and XI, and the cargo or part thereof is forwarded to destination by other means, rights and liabilities in general average shall, subject to cargo interests being notified if practicable, remain as nearly as possible the same as they would have been in the absence of such forwarding, as if the common maritime adventure had continued in the original ship for so long as justifiable under the contract of carriage and the applicable law.
4. The proportion attaching to cargo of the allowances made in general average by reason of applying the third paragraph of this Rule shall be limited to the cost which would have been borne by the owners of cargo if the cargo had been forwarded at their expense.
The rule practically remains the same except that the following line is added:
This limit shall not apply to any allowances made under Rule F.
Thus, where as a GA act, where a ship was say towed to a port of refuge and then the cargo was forwarded to destination as the repairs to the ship was undertaken, the above rule will apply.
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