Richard R Cornah, Richard C G Sarll and Joseph B Shead (eds), Lowndes & Rudolf: General Average and York-Antwerp Rules

Published date01 September 2019
DOI10.3366/elr.2019.0591
Pages461-462
Date01 September 2019

Even for the professional lawyer, the law of general average is particularly esoteric and abstruse. The name gives no hint of what the law is about. Its origins are ancient and obscure. But it is well established. It finds its first mention in the Digest of Justinian, referring back to the laws of the Rhodians, where, as the authors remind us, the basic principle is succinctly set out: “if, in order to lighten a ship, merchandise has been thrown overboard, that which has been given for all should be replaced by the contribution of all” (para 00-01). So, despite the difficulty of language and uncertainty of origin, the rule is clear in its essentials. It appears to have been adopted as part of the law of the sea both in the Mediterranean and in the Baltic as well as on the Atlantic coast of France, where the Rolls of Oleron, of uncertain date, record judgments of the courts in Bordeaux in connection with the already flourishing trade in wine. As to the problem of the name, one theory is that the word “average” probably derives from the Italian “avere”, meaning the having of property, and was used to denote the basis of contribution or contributory value according to which the owner of property deliberately discharged or jettisoned in the interests of all was to be compensated. But whatever its origin, the term “average” has been used in England since the end of the eighteenth century and brooks no further discussion.

Differences inevitably arose in the way in which the principle, albeit widely accepted, was applied. Some of these differences were differences only of detail. Others, such as whether (after the ship had reached a place of safety) expenses incurred to enable it to resume the voyage were also to be treated as general average, were more fundamental. It was to resolve such differences that international conferences were held from 1860 onwards which resulted in the agreement of the York-Antwerp Rules. From the Glasgow Resolutions in 1860, the York Rules in 1864, the York and Antwerp Rules in 1877 and the first York-Antwerp Rules in 1890, the Rules have undergone revision on five further occasions, excluding the 1990 amendment which is not counted for this purpose, as difficulties have arisen or differences of opinion have been expressed. The latest version is the York-Antwerp Rules 2016 and it is the promulgation of this latest edition of the Rules which has prompted the issue of this new edition of Lowndes and Rudolf.

Despite the frequency with...

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