York-Antwerp Rules 1974/1990.
77 Even NYPE 2015 still refers to the YorkAntwerp Rules 1994.
78
The 2004 version of the York-Antwerp Rules is, thus, an example of “maritime
law in motion” that did not bring maritime practice along with it. The principal
objection to its provisions was in relation to the treatment of salvage. In the 1994
version (and its predecessors), salvage expenses were included as general average
expenditures under Rule VI. In contrast, the 2004 version of Rule VI provided that
salvage payments “shall lie where they fall and shall not be allowed in general
average”. The significance of the distinction lay in the fact that contributing values in
salvage are calculated upon successful completion of the salvage, which usually
occurs at the port or place of refuge where the ship and cargo are delivered to safety,
whereas contributing values in general average are calculated on the basis of values
at the originally-intended port of final destination, under Rule G. As well, general
average expenditures include expenses incurred after the end of the salvage, such as
repair costs at the port of refuge and any additional costs incurred in completing the
voyage from the port of refuge to the originally-contemplated destination.
Those opposed to including salvage in general average argued that inclusion of
salvage involves unnecessary duplication of the apportionment of the salvage
remuneration. Those in favour of including salvage in general average argued that
to leave salvage to lie where it falls might lead to injustice, particularly if the value of
the carrying ship or its cargo were to be diminished in some way, perhaps by another
accident, between leaving the port of refuge and arrival at the originallycontemplated destination.
Recognizing that the 2004 version of the Rules had not been a success, CMI
resolved in 2012 to draft a new set of rules, to be adopted in 2016. The new version
of the Rules was adopted at the 42nd Assembly and Conference of CMI in
New York in May 2016. The 2016 version of the York-Antwerp Rules attempts to
find a compromise between the competing positions about whether or not to include
salvage in the general average. In the 2016 version, Rule VI restores the 1994
position, by which salvage is included in the general average, subject to an exception
for circumstances in which including salvage in the general average would be unfair.
It remains to be seen whether the 2016 version will prove to be another example
of maritime law moving on its own, without bringing maritime practice along with
it. None of the leading container lines has yet changed its bill of lading to make
reference to the 2016 Rules, although BIMCO’s suite of standard form bills of lading
and sea waybills reissued in 2016 does make reference to the York-Antwerp Rules
77 See, for example, cl. 24(1) of the Maersk Line bill of lading; cl. 22 of the MSC bill of lading
(“York-Antwerp Rules 1994 except Rule XXII”); cl. 14(2) of the CMA CGM bill of lading; cl. 23
(1) of the COSCO bill of lading; cl. 22 of the Hapag-Lloyd bill of lading. Website references for
these bills of lading are cited above, note 41.
78 NYPE 2015, cl. 25.
168
M. Davies
77 Even NYPE 2015 still refers to the YorkAntwerp Rules 1994.
78
The 2004 version of the York-Antwerp Rules is, thus, an example of “maritime
law in motion” that did not bring maritime practice along with it. The principal
objection to its provisions was in relation to the treatment of salvage. In the 1994
version (and its predecessors), salvage expenses were included as general average
expenditures under Rule VI. In contrast, the 2004 version of Rule VI provided that
salvage payments “shall lie where they fall and shall not be allowed in general
average”. The significance of the distinction lay in the fact that contributing values in
salvage are calculated upon successful completion of the salvage, which usually
occurs at the port or place of refuge where the ship and cargo are delivered to safety,
whereas contributing values in general average are calculated on the basis of values
at the originally-intended port of final destination, under Rule G. As well, general
average expenditures include expenses incurred after the end of the salvage, such as
repair costs at the port of refuge and any additional costs incurred in completing the
voyage from the port of refuge to the originally-contemplated destination.
Those opposed to including salvage in general average argued that inclusion of
salvage involves unnecessary duplication of the apportionment of the salvage
remuneration. Those in favour of including salvage in general average argued that
to leave salvage to lie where it falls might lead to injustice, particularly if the value of
the carrying ship or its cargo were to be diminished in some way, perhaps by another
accident, between leaving the port of refuge and arrival at the originallycontemplated destination.
Recognizing that the 2004 version of the Rules had not been a success, CMI
resolved in 2012 to draft a new set of rules, to be adopted in 2016. The new version
of the Rules was adopted at the 42nd Assembly and Conference of CMI in
New York in May 2016. The 2016 version of the York-Antwerp Rules attempts to
find a compromise between the competing positions about whether or not to include
salvage in the general average. In the 2016 version, Rule VI restores the 1994
position, by which salvage is included in the general average, subject to an exception
for circumstances in which including salvage in the general average would be unfair.
It remains to be seen whether the 2016 version will prove to be another example
of maritime law moving on its own, without bringing maritime practice along with
it. None of the leading container lines has yet changed its bill of lading to make
reference to the 2016 Rules, although BIMCO’s suite of standard form bills of lading
and sea waybills reissued in 2016 does make reference to the York-Antwerp Rules
77 See, for example, cl. 24(1) of the Maersk Line bill of lading; cl. 22 of the MSC bill of lading
(“York-Antwerp Rules 1994 except Rule XXII”); cl. 14(2) of the CMA CGM bill of lading; cl. 23
(1) of the COSCO bill of lading; cl. 22 of the Hapag-Lloyd bill of lading. Website references for
these bills of lading are cited above, note 41.
78 NYPE 2015, cl. 25.
168
M. Davies