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cattle trades. Now, had this amendment been carried, it would have been found to be in direct conflict with the French Code, Art. 229, which gives the shipper, whose goods are carried on the upper-deck without his consent in writing, another and direct remedy against the captain, and through him against the shipowner, and which, in common with the other Codes, expressly decrees that goods so laden shall not share in General Average. It is true that the Codes make an exception to the practical prohibition of deck-loading, that is to the captain’s liability for goods so laden, in the case of small vessels engaged in the local coasting trade, from the necessity of the case, as such vessels are frequently wholly or partially open, and, therefore, must carry goods exposed, as on the upper-deck, and in the Spanish Code (Art. 855) goods so carried are permitted to share in General Average. But this special permission would exclude the operation of the proposed amendment in other cases—that is, in ocean, as contrasted with coasting voyages, whilst in the Italian Code, Art. 650, and Portuguese, Art. 641, there is a special provision for Average infer sese on goods so carried. But such a provision, if incorporated in all the Bills of Lading, would be valid enough in England, as the parties would in such case have contracted themselves out of the operation of the law, as laid down in The Royal Exchange Shipping C0. v. Dixon (I2 App. Cas. I1), though in such case it would be a special contract between the parties, and not, properly speaking, a General Average contribution, and could not bind any shipper whose Bill of Lading did not incorporate the Rule, thereby giving rise to a fresh crop of difficulties in adjusting, if the Bills of Lading were not all in the same form.
Coming now to the first alteration actually made at Liverpool: the second Rule previously related only to the special case of goods remaining on board being damaged by water coming into the ship during a jettison ; this is wisely altered and extended to include all damage done to ship or goods by the consequences of a General Average act. This was already the Law of France (Arts. 400 (5), 422, 426), Holland (Arts. 699 (5, 6, 23)), and other States; the desire probably was to bring the Rule into accordance with the very carefully-worked out Commercial Law of Germany, itself in very many respects an attempt, and a successful attempt, to codify the Law of England (see Lowndes on Average, 4th Ed., pp. 37, 426, and Germany Comm. Code, Art. 108(1)). Passing on to Rule VI., it seems rather difficult to see why damage done by carrying a press of canvas to get a ship off the shore, or to run her higher up on shore, should be made good in General Average, when the same act, the ship being afloat, where performed for the purpose of escaping an enemy, keeping off a lee shore, or running ashore to avoid sinking in deep water, should not be. There is, however, this practical difference, that whilst the ship is afloat it would be very easy to make out and very difficult to disprove that any sail blown or spar carried away was sacrificed for the good of all concerned, whilst when the ship is on shore such a sacrifice requires no proof. The next Rule (VII.) is new, but applies and adapts in accordance with the practice of English Average Staters the principle of the previous Rule, as to damage to sails and spars, to engines and boilers.
Rules X. and XI., which take the place of the old Rule VII., go into much greater detail than that Rule. The matters with which it deals have been the subject of great controversy, both in this country and abroad, and the Law with regard to expenses in a port of refuge can only be said to have been settled here in quite the last few years by the two great cases of Attwood v. Sellar, 4 Q.B.D. 342, 5 Q.B.D. 286, and Svendsen v. Wallace, II Q.B.D. 616, 13 Q.B.D. 69, IO App. Cas. 404, that is to say, that the parties to a shipping contract, without special contract on the subject of General Average, have only recently obtained the knowledge of what their relative rights were in such cases, and have learnt that in several respects they were different from what the Average Adjusters generally had thought; that is, that General Average claims for nearly a century had been wrongly settled. A similar surprise, even more recently, but in the other direction, was sustained in France, when the Court of Cassation, in 1890, held that a Particular Average might, under certain circumstances, when of sufficient gravity to imperil ship and cargo, change its character and become a General Average, an exception which, so far as putting into a port of refuge in consequence of Particular Average and the expenses occasioned thereby, is obviously of the largest description (see Revue Internationale de Droit Maritime, Vol. II., p. 92), but as there is no direct provision of the Code the parties can still contract as they will about it.As the decisions of the French Courts are accepted as authorities in other countries having similar provisions, it may almost be assumed that the Continental laws generally would be interpreted as the French Court of Cassation has interpreted that of France. Here then, if anywhere, it was desirable to get uniformity; the views of all concerned had been upset by the decisions of the Courts of two leading European nations, the Rules adopted previously to the decisions had been different, and the decisions of the Courts introduced yet other and further differences, and yet it was open to all to contract as they chose. Under these circumstances, it is not desirable to criticise the Rule introduced and carried unanimously at Liverpool. It may or may not be the best possible determination of the moot question, but it is a determination, and henceforth those who adopt the YorkAntwerp Rules, 1890, in their contracts of affreightment
will, at all events, have the advantage of knowing what their liabilities will be, independently of the place at which they were incurred or at which they were adjusted.
The new Rules XIII. and XIV. are of great importance. Heretofore the only recognised qualification of the cost of repairs was what was well known as the “one-third new for old” rule, that is to say, that after the first voyage of a ship, it was considered that the general condition was improved by having repairs effected upon her, and new material used instead of that which was partially used. This was obviously a very rough Rule, even as far as wooden ships were concerned, as there would be a considerable difference between the enhanced value of a vessel by reason of extensive repairs if she was one year or ten years old, and the difference was even more glaring in the case of sails and rigging, and such like things which perish with the using. But when iron and steel ships were introduced, the Rule became so obviously absurd that a clause was almost invariably inserted in English policies of insurance on such vessels, either abrogating or modifying the Rule. As such policies, however, could not affect the cargo owners, in an adjustment of General Average, these would only pay on an assumption of two-thirds the actual price of ship’s repairs, leaving the underwriters on ships to pay the ship’s share in full, plus the one-third part of the cargo’s share. This anomaly led the Association of Average Adjusters, in 1887, to adopt a species of sliding scale for iron vessels, according to age of the vessel and the nature of the repairs; but it is doubtful how far a mere agreement of Average Adjusters as to the propriety of such an arrangement could or would have been held of itself to legalise an adjustment made on such a basis. But now, there being nothing illegal in the plan, it is incorporated, together with the old one-third new for old slightly modified, in the case of wooden ships, in Rule XIII., whilst a further Rule XVI. embodies the practice of Average Adjusters as to temporary repairs, and any person agreeing to have the YorkAntwerp Rules, 1890, incorporated agrees to this equitable arrangement as a part of the contract, subject to this, that if the contract be a Spanish one, and adjusted in Spain, he is bound by Art. 853 (6) of the Spanish Code to the one-third new for old rule in the adjustment of values of spars, sails, ropes, and other ship's apparel.
It would not be difficult to multiply instances out of the several Codes where the York-Antwerp Rules, even in their present form, appear likely to clash with them, and give rise to litigation to determine the rights of the contracting parties, and it is greatly to be feared that if the Law of General Average, either as laid down by the Courts as Common Mercantile Law in this country, or the modified form of it embodied in the York-Antwerp Rules, now under consideration, were enacted in this country as a Code, as proposed, amongst others, by Mr. Carver, in the Third Edition of his most valuable work on Carriage by Sea, the result would be only to increase the difficulty of adapting contracts between mercantile people to the varying and progressive conditions of shipbuilding and trade on this important matter. Perhaps the true remedy would be to get other Maritime States to repeal their Codes so far as they interfere with the liberty of contract, in which case the York-Antwerp Rules, as amended and adapted from time to time to meet the changes of trade, would become, as we commenced by saying they might become, a most valuable voluntary Code, which the parties might adopt en bloc, or with such modifications as seemed good to them to meet the particular requirements of each individual trade