2016.
79 As noted above, the practice of using the 1946 version of the NYPE form,
which incorporates the 1924 version of the Rules, is still widespread.
If the shipping industry does continue to adhere to the 1994 version of the Rules
(now a quarter century old), other changes wrought by the 2004 version of the Rules
and continued in 2016 will be lost. Most significant among those is the new Rule
XXIII, which was introduced in 2004 and retained in 2016, and which deals with the
limitation period for making a claim for general average contribution. That limitation
period would ordinarily begin to run at the time the general average sacrifice is made
or the general average expenditure is incurred, as that is when the relevant cause of
action arises.
80 Because the right to contribution arises out of the parties’ agreement
to the York–Antwerp Rules, rather than under general maritime law, the relevant
limitation period would thus ordinarily be the one applying to contract claims.
Where the claim for contribution is made by the shipowner against cargo-owners,
the relevant limitation period would, in the absence of agreement, be the ordinary
period for contract claims. In contracts governed by English law, that would be
6 years.
81 Where, however, the claim is made by the cargo-owner against the
shipowner, the claim should be subject to the 1-year limitation period that governs
claims under the Hague or Hague–Visby Rules. There is English and U.S. authority
for the proposition that a cargo-owner’s contractual claim for a general average
contribution is a claim “in respect of the goods” for the purposes of Art. 3, r. 6 of the
Hague or Hague–Visby Rules, and so is subject to the 1 year limitation period from
the time when the goods were delivered or (in the event of loss) should have been
delivered.
82 That is an unfortunate result, given the length of time that it can take for
the adjustment to be made, as the cargo-owner’s claim might be extinguished by Art.
3, r. 6 before the adjustment could be completed.
For that reason, the new Rule XXIII provides that any claim for general average
contribution is extinguished unless brought within 1 year after the date when the
general average adjustment was issued, but no later than 6 years after the date of
termination of the common maritime adventure. Both of those dates—the date of
termination of the common maritime adventure and the date of issue of the adjustment—will always in practice be later than the date upon which the right to claim
contribution arose, so Rule XXIII effects (or attempts to effect) a thoroughgoing
change to the previously-existing position. It was continued without modification in
the 2016 version of the Rules. Obviously, this modification does not apply to
adjustments done under the earlier versions of the Rules that are still widely referred
to in standard form shipping contracts.
79 See BIMCO’s Conlinebill 2016, cl. 12; Combinconbill 2016, cl. 23; Linewaybill 2016, cl. 23;
Combiconwaybill 2016, cl. 23.
80 Castle Insurance Co. Ltd v. Hong Kong Islands Shipping Co. Ltd [1984] A.C. 226 (P.C.)
(reported sub nom The Potoi Chau [1983] 2 Lloyd’s Rep. 376).
81 Limitation Act 1980 (U.K.), s. 5.
82 Goulandris Bros Ltd v. B. Goldman & Sons Ltd [1958] 1 Q.B. 74, 105–106 per Pearson J.; Orient
Mid-East Lines Inc. v. Shipment of Rice on Board S.S. Orient Transporter, 496 F.2d 1032,
1042–1043, 1974 AMC 2593, 2606–2607 (5th Cir. 1974).
When Was the Last Time You Were Restrained by a Prince? Conservatism. . .
169
79 As noted above, the practice of using the 1946 version of the NYPE form,
which incorporates the 1924 version of the Rules, is still widespread.
If the shipping industry does continue to adhere to the 1994 version of the Rules
(now a quarter century old), other changes wrought by the 2004 version of the Rules
and continued in 2016 will be lost. Most significant among those is the new Rule
XXIII, which was introduced in 2004 and retained in 2016, and which deals with the
limitation period for making a claim for general average contribution. That limitation
period would ordinarily begin to run at the time the general average sacrifice is made
or the general average expenditure is incurred, as that is when the relevant cause of
action arises.
80 Because the right to contribution arises out of the parties’ agreement
to the York–Antwerp Rules, rather than under general maritime law, the relevant
limitation period would thus ordinarily be the one applying to contract claims.
Where the claim for contribution is made by the shipowner against cargo-owners,
the relevant limitation period would, in the absence of agreement, be the ordinary
period for contract claims. In contracts governed by English law, that would be
6 years.
81 Where, however, the claim is made by the cargo-owner against the
shipowner, the claim should be subject to the 1-year limitation period that governs
claims under the Hague or Hague–Visby Rules. There is English and U.S. authority
for the proposition that a cargo-owner’s contractual claim for a general average
contribution is a claim “in respect of the goods” for the purposes of Art. 3, r. 6 of the
Hague or Hague–Visby Rules, and so is subject to the 1 year limitation period from
the time when the goods were delivered or (in the event of loss) should have been
delivered.
82 That is an unfortunate result, given the length of time that it can take for
the adjustment to be made, as the cargo-owner’s claim might be extinguished by Art.
3, r. 6 before the adjustment could be completed.
For that reason, the new Rule XXIII provides that any claim for general average
contribution is extinguished unless brought within 1 year after the date when the
general average adjustment was issued, but no later than 6 years after the date of
termination of the common maritime adventure. Both of those dates—the date of
termination of the common maritime adventure and the date of issue of the adjustment—will always in practice be later than the date upon which the right to claim
contribution arose, so Rule XXIII effects (or attempts to effect) a thoroughgoing
change to the previously-existing position. It was continued without modification in
the 2016 version of the Rules. Obviously, this modification does not apply to
adjustments done under the earlier versions of the Rules that are still widely referred
to in standard form shipping contracts.
79 See BIMCO’s Conlinebill 2016, cl. 12; Combinconbill 2016, cl. 23; Linewaybill 2016, cl. 23;
Combiconwaybill 2016, cl. 23.
80 Castle Insurance Co. Ltd v. Hong Kong Islands Shipping Co. Ltd [1984] A.C. 226 (P.C.)
(reported sub nom The Potoi Chau [1983] 2 Lloyd’s Rep. 376).
81 Limitation Act 1980 (U.K.), s. 5.
82 Goulandris Bros Ltd v. B. Goldman & Sons Ltd [1958] 1 Q.B. 74, 105–106 per Pearson J.; Orient
Mid-East Lines Inc. v. Shipment of Rice on Board S.S. Orient Transporter, 496 F.2d 1032,
1042–1043, 1974 AMC 2593, 2606–2607 (5th Cir. 1974).
When Was the Last Time You Were Restrained by a Prince? Conservatism. . .
169