York Antwerp Rules

N; Geoffrey Hudson; M; A; and Michael D; Harvey

Document

Page 58

CHAPTER 10 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.
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.
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.

Evolution

10.01 The first paragraph of the current text formed the original Rule, which was introduced in 1924, and remained unaltered until 1994. 10.02 At the Hamburg Conference in 1974 it was proposed to add a further paragraph reading: “Thereafter the onus of proof is upon the party refusing to contribute in general average to show that he is not liable to contribute.” This proposal was not accepted, not because it was incorrect but because it was believed to trespass upon the province of Rule D. 10.03 In the run-up to the Sydney Conference in 1994, attention was focused upon the problem which had arisen when parties claiming in general average failed to give timely notice of their intention to claim or, having done so, failed to produce adequate evidence in support of their claim in spite of being requested to do so. The average adjusters on the CMI International Sub-Committee were invited to address this problem with a view to recommending whether or not it would be feasible to impose a cut-off date, either by a provision in the York-Antwerp Rules or otherwise. This was a

Page 59

shrewd move, since average adjusters were only too frequently blamed for the length of time taken to produce average adjustments due not to their inefficiency but to the dilatoriness of the parties in producing essential evidence. The AIDE passed the question to one of their working groups and in the event the General Assembly at Prague in September 1993 approved a proposal to recommend the following text as an addition to Rule E:

All parties claiming in general average shall give notice in writing to the average adjuster of their claims in general average within 12 months of the date of the termination of the common maritime adventure.

The rest of this document is only available to i-law.com online subscribers.

If you are already a subscriber, click Log In button.