In order to achieve a wide acceptance of the York-Antwerp Rules by the shipowners a number of significant modifications have recently been discussed. Jürgen Hahn gives some insights into this ongoing process
For the first time since the introduction of the York-Antwerp Rules in the 19 th century their wording has[ds_preview] not been accepted by the shipowners and it has been noted that only in very few cases the York-Antwerp Rules 2004 have been incorporated into the contracts of affreightment. Therefore, it has been suggested that a revision of the York-Antwerp Rules 2004 should result in achieving a common acceptance of a new set of rules by all parties involved in the global shipping industry. In particular the following rules are under due consideration:
Rule E
There is a general consensus between the members of the working group to accelerate the receipt by the average adjuster of full documented details of the contributory values, including sacrifice damages to properties, but the final version of the wording of the clause has still to be adopted. It has also been considered to have an expressed wording related to recoveries which should be dealt with Rule E instead of Rule D.
Rule G
There is a general consensus between the members of the working group of excluding from contribution low-value cargoes similar along the lines already introduced under the Lloyd’s Standard Salvage and Arbitration Clauses. Furthermore, it has been suggested the capping of the proportional contribution due from parties concerned in cargo, also known as the »Bigham Clause«, should be deleted and this should be discussed in Hamburg in view of the unfair treatment of the other property parties.
Rule VI
The debate regarding the inclusion or exclusion of salvage where the law or the contract already provides for a means of distribution between the parties to the maritime adventure remains open. At present the positions of the members of the working group are to retain the 1994 position, adopting the 2004 position and continue retaining the 1994 position but to encourage average adjusters to take an ad hoc approach wherever possible. The respective positions of ICS (International Chamber of Shipping) and IUMI (International Union of Marine Insurance) are firmly entrenched, therefore, there is a general consensus that a workable compromise has to be adopted in view of the fundamental shortfalls of Rule VI under the York-Antwerp Rules 2004. This will be difficult to achieve in view of the uncompromising positions adopted. No doubt the York-Antwerp Rules 2004 did not achieve what had been the intention to reduce the cost of administering the settlement of General Average when excluding salvage.
Rule X
In view of the uncertainties introduced by the judgment in the case of the »Trade Green« into the interpretation of the term »port charges« in Rule X, it is now suggested that two proposals for clarifying amendments to Rule X are to be debated in Hamburg.
Rule XI
In general terms under York-Antwerp Rules 2004 wages and maintenance of the crew are not allowed in General Average during stay in a port of refuge whilst repairs are being carried out necessary for the safe prosecution of the laden voyage. This position is not acceptable by ICS and from a questionnaire circulated before the 2013 Dublin symposium and the general debate between the members of the working group one of the suggestions is to revert to the 1994 position with the UK Association of Average Adjusters’ suggestion for an addition of clarity to the wording. In case of adopting this amendment to Rule XI the allowances for wages and maintenance of the crew would be again allowed in General Average whilst in a port of refuge.
Rule XX
There is a general consensus between the members of the working group that commission as per Rule XX should be abolished.
Rule XXI
This subject has been debated at length and it is agreed between the members of the working group that an interest rate fixed for the »life« of a set of York-Antwerp Rules is inappropriate. A number of solutions to the wording have been discussed already, but this subject requires further considerations in respect of the reality of interest rates charged by bankers when financing disbursements incurred in a case of General Average.
Currency
At present the practice of adopting the currency of the adjustment is somehow unsatisfactory. Therefore, the present suggestions are to draft the Adjustment of General Average in Special Drawing Rights (SDRs) following certain rules as far as the rates of exchange to be applied. Such addition would be a further paragraph to Rule XXI.
Rule XXII
There is consensus between the members of the working group that a more practical approach has to be adopted. But again this requires a more detailed debate to ensure that this rule is reflecting the interests of the cash depositors in particular.
The debates over the various subjects to reform the York-Antwerp Rules 2004 in Dublin and London have been conducted in a very professional way under the excellent chairmanship of Bent Nielsen and everybody is looking forward to the Hamburg sessions.
Jürgen Hahn
