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The Star Antares and the battle of the York-Antwerp Rules – which version will prevail?

Posted: 14/11/2023

On 10 November 2023, the English High Court handed down its decision in The Star Antares [2023] EWCH 2784, in which Mr Justice Butcher was tasked with determining whether the 1994 version, or the 2016 version of the York-Antwerp Rules (YAR), was incorporated into the contract of carriage encapsulated in a Congenbill 1994 bill of lading form. 

The relevant provision in the well-known clause reads as follows: ‘General Average shall be adjusted, stated and settled according to York-Antwerp Rules 1994, or any subsequent modification thereof […]’

External vs internal aids to interpretation 

Without having received judicial consideration, there was a relatively widespread assumption in the market that the above wording was not effective in incorporating the 2016 version of the YAR given that this (and its predecessor, the 2004 YAR) were expressed to be ‘new sets of Rules’ rather than ‘modifications’ of the YAR 1994.

This assumption was, in part, based on a number of commentaries ranging from deliberations of the Association of Average Adjusters to prominent textbooks that made particular reference to the Congenbill 1994 wording.

The carriers relied on these sources and said they affected how this wording was construed. They added that the Congenbill 1994 form (rather than the Congenbill 2016 form) was used by the parties deliberately and for this very reason, ie to make the YAR 1994 applicable in the event of a general average event. 

The cargo interests disagreed and pointed out that commercial parties operating in the shipping arena often use well-known standard forms of contracts for many years, even when newer versions are circulated in the market. This practice, the cargo interests argued, meant that it could not be concluded that the parties intended to oust provisions of newer versions of rules that would otherwise have been incorporated by express reference. 

The cargo interests also submitted that the particular wording of the clause merely records the desire of the drafters of the Congenbill 1994 to incorporate the latest version of the YAR (currently the YAR 2016), which would reflect modern developments in the shipping industry, rather than an outdated form. They also submitted that the word ‘modification’ was wider than the word ‘amendment’, and wide enough to encompass what was, in effect, a new version of the YAR.

Finally, the cargo interests also drew a parallel with the line of authorities, such as The Vechscroon [1982] 1 Lloyd’s Rep 301 and The Marinor [1996] 1 Lloyd’s Rep 301, establishing that clauses purporting to incorporate the Hague Rules (or legislation giving effect to these) and ‘any amendment thereto’ and ‘as amended’, were effective in incorporating the Hague-Visby Rules.

The judge’s approach

Mr Justice Butcher found for the cargo interests, and held that a reasonable person without regard to the materials relied upon by the carrier would not have put faith in the ‘somewhat technical distinction’ between amendments to the 1994 version of the YAR, and a new version of the YAR. Had the parties intended this distinction, they would not have used such wide words as ‘any … modification’. In fact, the judge found that, as a matter of ordinary use of language, the word ‘modification’ was appropriate and wide enough to encompass subsequent editions of the YAR. He also agreed with the cargo interests’ approach which drew support from the Hague Rules cases.

The judge noted that most of the commentaries on the YAR were either not conclusive of the point, or were merely statements of their authors’ own opinion. He added that, even if they were known by the parties when they entered into the contract of carriage (which he doubted they were), they should have been understood as such, rather than as ‘a sure guide to how a court would construe the relevant words’.

The judge finally concluded that the parties could have simply used the Congenbill 2007 form if they had wished to ensure that the YAR 1994 were to apply to general average (GA).  

Concluding remarks

It is understood that the carrier intends to appeal the decision, so this might not be the final word on this issue. That said, the judgment of Mr Justice Butcher is compelling. 

For the avoidance of disputes, parties negotiating their contracts of carriage, charterparties, insurance contracts or GA bonds and guarantees should be alive to this new ruling and adapt their drafting/negotiations accordingly. 

Also, in cases where the Congenbill 1994 wording (or similar) was used and parties/average adjusters have performed their GA exercise on the assumption that the YAR 1994 are applicable, due regard should now be given to the application of the one-year time bar introduced by the YAR 2016 for any claims for GA contributions, namely a time limit of one year from the date of the general average adjustment.

For any adjustments already in progress, in which the applicable GA regime has not been clearly agreed between the parties or was assumed to be the YAR 1994, average adjusters may ideally wish to clarify with the parties involved which regime will be applicable, so that any doubts are addressed as early as possible, and parties know where they stand in terms of their rights and duties.

For GA incidents that may arise in the context of an already agreed Congenbill 1994 or equivalent wording incorporated in a charterparty, parties could, should they wish, agree to vary the applicable YAR regime by way of incorporation of a separate term into the GA bond and GA guarantee to be issued.

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