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In a letter dated 26th March 1999 Mr Stefan Peller, General Secretary of the International Union of Marine Insurance (IUMI), requested the President of the CMI to place the case for revision of the York-Antwerp Rules back on its working agenda. A working group, consisting of M. Pierre Latron (France) Mr. Hans Levy (Denmark) and under the chairmanship of Dr. Thomas Remé (Germany) was set up and a questionnaire prepared, which was sent to all National Maritime Law Associations. Responses have been received from 21 Maritime Law Associations in all, namely Argentina, Australia and New Zealand, Brasil, Canada, China, Denmark, Finland, France, Germany, Gulf States, Indonesia, Italy, Japan, Netherlands, Portugal, Senegal, Slovenia, Spain, Sweden, U.K., and the U.S.A. A copy of the questionnaire accompanies this report as Appendix A. At the CMI Colloquium which took place in Toledo, Spain on 18th to 20th September 2000, the possible revision of the York-Antwerp Rules was one of the subjects selected for discussion. Papers were presented, inter alia, by Mr Eamonn Magee an underwriter, and Mr Geoffrey Hudson, an average adjuster, whose main thrust was respectively for and against the amendment of the York-Antwerp Rules. A lively discussion ensued, at the conclusion of which it was the common consensus that this was a subject which should be included on the work programme of the 2001 CMI Conference in Singapore. Mr. Richard Shaw (UK) was appointed Rapporteur of that session and he has agreed to continue in that role in Singapore. It has not proved practicable to produce a synopsis of all the replies to the questionnaire which have been received. One of the great strengths of the CMI is the diversity of membership of the national maritime law associations of which it is composed, and many such associations have appointed a committee with broad mix of members to draft their association’s reply. It is not surprising that in many cases the responses have indicated a divergence of views on their committee between those representing marine insurers who have favoured revision and those representing shipowning interests and average adjusters, who have not. A number of associations have, very properly, pointed out that some of the questions were formulated in a way which did not allow a simple yes/no reply. That was not entirely an accident, but resulted from the Working Group’s wish to ensure that the IUMI proposals were considered broadly by the respondents, and that the questions were not formulated in a way which might pre-judge the replies. However, it is right that we should record that question 1 might have created the impression that the concept of common benefit was introduced relatively recently, whereas in fact it can trace its origins to 1890 and possibly to 1864. We are grateful to the Associations of Netherlands, Sweden, the UK and the USA for pointing this out. Likewise it has been drawn to our attention that while we stated in question 5 that the 1994 Sydney amendments to the York-Antwerp Rules mentioned expressly for the first time the preventing or minimising of damage to the environment, such expenses have, in appropriate cases been allowed in GA for some years. The appropriate cases would arise where the pollution damage itself was the result of a General Average act. It was, however, clear that the substance of this question was well understood, and almost all the respondents considered that the compromise achieved in Sydney on this point (general exclusion of pollution damage from GA in Rule C, but limited exceptions to that principle in Rule XI (d)) should not be disturbed. In summary, of the 21 national Maritime Law Associations which replied to our questionnaire, 10 were clearly in favour of retaining the “common benefit” principle of GA, while 7 associations were in favour of a change from “common benefit” to “common safety”, and 4 associations were so divided as to be unable to formulate a common position. This subject is therefore very much open for discussion in Singapore. In order to enable delegates to prepare for that discussion it has been decided to include in the 2000 Year Book the text of the papers presented in Toledo by Mr Magee and Mr Hudson with the arguments for and against the changes proposed by IUMI, and those papers accompany this report as Appendices B and C. The York-Antwerp Rules are one of the exceptional cases where the CMI still has a role as “trustee”, with the power to adopt changes to the Rules and to recommend them to carriers and merchants world-wide. It is therefore very important that there should be a wide-ranging review of the issues involved in the changes proposed by IUMI, so that an informed and wise decision can be made. THOMAS M. REMÉ, Chairman |
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