forum, to be applied to any litigation in that country.
71 Some countries with a
significant maritime presence that are not party to the Convention, such as
South Africa
72 and South Korea,
73 have adopted its provisions into their domestic
law, as have other countries such as Pakistan
74 and Bangladesh,
75 where collision
litigation is perhaps less likely to occur.
In short, the Convention’s proportionate liability rule applies in almost all
countries of the world where a “both to blame” collision is likely to be litigated—
including in most cases in the United States, as we have seen. Why, then, does every
contract for carriage of goods by sea have to contain a Both-to-Blame Collision
Clause? The answer is, of course, that it doesn’t, but the clause is routinely included
in carriage contracts just because it always has been, and because no-one has the
nerve to abandon it as irrelevant.
5 General Average
The York-Antwerp Rules governing the adjustment of general average began their
life as the York Rules of 1864, which were adopted by a body known as the
International General Average Congress.
76 The Congress amended the rules in
Antwerp in 1877; thereafter, they were known as the York and Antwerp Rules.
The York-Antwerp Rules were revised in 1890, 1924, 1950, 1974 (modified in
1990), 1994 and 2004. The 2004 version of the Rules, which was adopted at the 38th
Assembly and Conference of the Comité Maritime International (CMI) in Vancouver, did not find acceptance among the shipowning community, and many maritime
contracts continue to incorporate the 1994 version of the Rules, or even the previous
version, the 1974 version as modified in 1990. For example, four of the five largest
container shipping lines continue to refer to the York-Antwerp Rules 1994 in their
bills of lading and sea waybills; the fifth (COSCO) continues to incorporate the
71 See, for example, The Miraflores and the Abadesa [1967] 1 A.C. 826, where the House of Lords
applied the then U.K. enactment of the 1910 Brussels Convention (Maritime Conventions Act 1911
(U.K.) s. 1) to a grounding involving two Panamanian-registered ships and one U.K.-registered ship
in the River Scheldt, in Belgium. Panama is not party to the Convention, so the Convention would
not have applied according to the terms of Art. 12, but it did because of the terms of the U.K. statute.
72 Merchant Shipping Act 1951 (S.Af.), s. 255.
73 Commercial Code (R.O.K.), Art. 879.
74 Pakistan Merchant Shipping Ordinance 2001 (Pak.), s. 419.
75 Bangladesh Merchant Shipping Ordinance 1983 (Bd.), s. 376.
76 Hudson and Harvey (2010), para 2.04.
When Was the Last Time You Were Restrained by a Prince? Conservatism. . .
167
71 Some countries with a
significant maritime presence that are not party to the Convention, such as
South Africa
72 and South Korea,
73 have adopted its provisions into their domestic
law, as have other countries such as Pakistan
74 and Bangladesh,
75 where collision
litigation is perhaps less likely to occur.
In short, the Convention’s proportionate liability rule applies in almost all
countries of the world where a “both to blame” collision is likely to be litigated—
including in most cases in the United States, as we have seen. Why, then, does every
contract for carriage of goods by sea have to contain a Both-to-Blame Collision
Clause? The answer is, of course, that it doesn’t, but the clause is routinely included
in carriage contracts just because it always has been, and because no-one has the
nerve to abandon it as irrelevant.
5 General Average
The York-Antwerp Rules governing the adjustment of general average began their
life as the York Rules of 1864, which were adopted by a body known as the
International General Average Congress.
76 The Congress amended the rules in
Antwerp in 1877; thereafter, they were known as the York and Antwerp Rules.
The York-Antwerp Rules were revised in 1890, 1924, 1950, 1974 (modified in
1990), 1994 and 2004. The 2004 version of the Rules, which was adopted at the 38th
Assembly and Conference of the Comité Maritime International (CMI) in Vancouver, did not find acceptance among the shipowning community, and many maritime
contracts continue to incorporate the 1994 version of the Rules, or even the previous
version, the 1974 version as modified in 1990. For example, four of the five largest
container shipping lines continue to refer to the York-Antwerp Rules 1994 in their
bills of lading and sea waybills; the fifth (COSCO) continues to incorporate the
71 See, for example, The Miraflores and the Abadesa [1967] 1 A.C. 826, where the House of Lords
applied the then U.K. enactment of the 1910 Brussels Convention (Maritime Conventions Act 1911
(U.K.) s. 1) to a grounding involving two Panamanian-registered ships and one U.K.-registered ship
in the River Scheldt, in Belgium. Panama is not party to the Convention, so the Convention would
not have applied according to the terms of Art. 12, but it did because of the terms of the U.K. statute.
72 Merchant Shipping Act 1951 (S.Af.), s. 255.
73 Commercial Code (R.O.K.), Art. 879.
74 Pakistan Merchant Shipping Ordinance 2001 (Pak.), s. 419.
75 Bangladesh Merchant Shipping Ordinance 1983 (Bd.), s. 376.
76 Hudson and Harvey (2010), para 2.04.
When Was the Last Time You Were Restrained by a Prince? Conservatism. . .
167