CMI’s work on revision of York- Antwerp Rules.

Sjørettsforeningen, 18.05.2015By Sveinung Måkestad

Vice President

Gard AS

Content

• Application and brief history of York-Antwerp Rules (YAR). • CMI and it’s role in revising YAR.• Recent YAR revisions and background for the present revision

process• CMI working group on revision of YAR.• Proposal of changes under discussion in the working group – present

status.

York-Antwerp Rules

• YAR are incorporated into virtually all Bills of lading / charterparties, and therefore primarily applies as a matter of contract.−Sjøl. § 461: Unless otherwise agreed, YAR 1994 applies…

• Uniformity on a truly global scale• First rules formulated 1860, and since then new versions in 1864,

1877, 1890, 1924, 1950, 1974, 1974 as amended 1990, 1994 and 2004.

Comitè Maritime International (CMI)

• “We are a non-governmental not-for-profit international organization established in Antwerp in 1897, the object of which is to contribute by all appropriate means and activities to the unification of maritime law in all its aspects.”

• Made up primarily of some 50 national maritime law associations• CMI has effectively been the custodian of YAR since 1947/48

Recent YAR revisions.

• Amendment of YAR 1974 in 1990 - a direct result of the 1989 Salvage convention, −clarified that «Special compensation» (for prevention and

minimising damage to environment) as per Article 14 was not allowable in GA.

• In 1990 the Council of the CMI decided on a broader review of YAR, and appointed an International sub-committe & working group−Prepared and distributed a report /questionnaire to national

maritime law associations• Concurrently, work reporting and recommendations/criticism e.g. by

UNCTAD and IUMI• YAR 1994 adopted at the CMI conference in Sydney, October 1994.

Recent YAR revisions (cont’d)

• Following introduction of 1994 YAR, the IUMI continued to express dissatisfaction with many aspects of GA, e.g. costs of procedures and the wide scope of allowances in GA.−Radical proposal to restrict GA to «common safety» principle

• CMI working group and report for discussion at CMI Vancouver conference in 2004.

• Limited support for restriction to «Common safety»• Considerable support however for various restrictions, such as−Exclusion of salvage−Reduction in allowance of crew wages and temp repairs−Reduced interest/commision

• YAR 2004 adopted at CMI Vancouver Conference

YAR 2004

• For the first time – no consensus between shipowning and other interests−ICS did not support changes;

−Changes considered premature−GA Absorption clauses in H&M policies had removed some

50% of GA cases.• Very limited adoption of YAR 2004 in Bills of Lading /charterparties• P&I insurers’ position largely unaffected by the changes−«Pollution compromise» achived in 1994 was not disturbed

Attempt to revise YAR in 2012

• CMI concerned that the situation was contrary to the objective of uniformity.−Prelim discussions in 2011 to see if a compromise set of rules could

be agreed at the 2012 CMI conference in Beijing.−Compromise proposals by a CMI working group and British MLA

were however not sufficiently supported at the 2012 conference.−Many MLAs and industry bodies felt there had been insufficient

time for consultation

YAR 2016?

• Following the Beijing conference 2012, the working group recommended to CMI Executive Council: «..that it should appoint a new International Working Group on General Average, with a mandate to carry out a general review of the York Antwerp Rules on General Average, and, noting that the York Antwerp Rules 2004 had not found acceptance in the ship-owning community, to draft a new set of York-Antwerp Rules which met the requirements of the ship and cargo owners and their respective insurers, with a view to their adoption at the 2016 CMI Conference.”

CMI working group for revision of YAR

• Chaired by Bent Nielsen.• Includes representatives from ICS and IUMI, and others attending in

an individual capaciy.• Extensive questionaire distributed, responses collected and

considered (incl. from Cefor / NMLA), • Amendments which (hopefully) can be accepted by all parties are

presently under consideration and next step is discussion during the CMI Assembly and Colloquium in Istanbul in June 2015.

Main issues under discussion

• Rule B – Tug and tow.−Main issue is lack of clarity.

• Rule E - Time limits for claiming in GA, and for providing information of values etc.−Attempt to tighten up the rule to the effect of speeding up adjustment

• Rule G – Non-separation agreements (NSA) and «Bigham» cap.−Decide and clarify unclear issues

• Rule VI – Salvage−Include salvage when necessary to obtain equity…

• Rule X – Expenses at port of refuge−Clarification of allowances during restowage of cargo. (No practical

change expected.)

Main issues under discussion

• Rule XI – Wages & maintenance of crew etc during deviation and at port of refuge.−Restriction in 2004 rules (i.e. no allowance of wages etc during

detention) unacceptable to shipowners. May need to revert to 1994 solution.

−Also a few clarifications are considered• Rule XIII – Deduction from cost of repairs−Consider to extend the present 12 months «time limit» for allowing

bottom painting, more in line with todays painting systems and docking intervals

• Rule XIV – Temporary repairs−2004 solution likely to be favoured, although to be clarified

Main issues under discussion

• Rule XVII – Contributory values−Clarify problems with inland destinations−Clarify problems with low value cargo−Clarify in respect of salvage (to some extent dependant on Rule VI)

• Rule XX – Provision of funds – commision−2% commision considered to be deleted

• Rule XXI – Interest−More flexible provisons for interest rates are considered, rather than

a fixed rate.

Other issues for consideration

• Currency of adjustment• Role and «best practice» of adjusters−To act independently and impartially and owes a duty of care towards all

parties to the maritime adventure−To be included in YAR?−(or in CMI guidelines?)

• Establishing CMI Guidelines for e.g…?−Application Rule VI−Interest rates−Cash deposits−Security documents−Role of GA adjuster and surveyor−Mediation / dispute resolution

CMI working group on revision of YAR

• Status and documents found on;

−comitemaritime.org−«work in progress»

Thank you for your attention!