(Vancouver, 04.06.2004)
In
the adjustment of general average the following Rules shall apply to the
exclusion of any Law and Practice inconsistent therewith.
Except
as provided by the Rule Paramount and the numbered Rules, general average shall
be adjusted according to the lettered Rules.
In
no case shall there be any allowance for sacrifice or expenditure unless
reasonably made or incurred.
1)
There is a general average act when, and only when, any extraordinary sacrifice
or expenditure is intentionally and reasonably made or incurred for the common
safety for the purpose of preserving from peril the property involved in a
common maritime adventure.
2)
General average sacrifices and expenditures shall be borne by the different
contributing interests on the basis hereinafter provided.
1)
There is a common maritime adventure when one or more vessels are towing or
pushing another vessel or vessels, provided that they are all involved in
commercial activities and not in a salvage operation.
When
measures are taken to preserve the vessels and their cargoes, if any, from a
common peril, these Rules shall apply.
2)
A vessel is not in common peril with another vessel or vessels if by simply
disconnecting from the other vessel or vessels she is in safety; but if the
disconnection is itself a general average act the common maritime adventure
continues.
1)
Only such losses, damages or expenses which are the direct consequence of the
general average act shall be allowed as general average.
2)
In no case shall there be any allowance in general average for losses, damages
or expenses incurred in respect of damage to the environment or in consequence
of the escape or release of pollutant substances from the property involved in
the common maritime adventure.
3)
Demurrage, loss of market, and any loss or damage sustained or expense incurred
by reason of delay, whether on the voyage or subsequently, and any indirect
loss whatsoever, shall not be allowed as
general average.
Rights
to contribution in general average shall not be affected, though the event
which gave rise to the sacrifice or expenditure may have been due to the fault
of one of the parties to the adventure, but this shall not prejudice any
remedies or defences which may be open against or to that party in respect of
such fault.
1)
The onus of proof is upon the party claiming in general average to show that
the loss or expense claimed is properly allowable as general average.
2)
All parties claiming in general average shall give notice in writing to the
average adjuster of the loss or expense in respect of which they claim
contribution within 12 months of the date of the termination of the common
maritime adventure.
3)
Failing such notification, or if within 12 months of a request for the same any
of the parties shall fail to supply evidence in support of a notified claim, or
particulars of value in respect of a contributory interest, the average adjuster
shall be at liberty to estimate the extent of the allowance or the contributory
value on the basis of the information available to him, which estimate may be
challenged only on the ground that it is manifestly incorrect.
Any
additional expense incurred in place of another expense, which would have been
allowable as general average shall be deemed to be general average and so
allowed without regard to the saving, if any, to other interests, but only up
to the amount of the general average expense avoided.
1)
General average shall be adjusted as regards both loss and contribution upon
the basis of values at the time and place when and where the adventure ends.
2)
This rule shall not affect the determination of the place at which the average
statement is to be made up.
3)
When a ship is at any port or place in circumstances which would give rise to
an allowance in general average under the provisions of Rules X and XI, and the
cargo or part thereof is forwarded to destination by other means, rights and
liabilities in general average shall, subject to cargo interests being notified
if practicable, remain as nearly as possible the same as they would have been
in the absence of such forwarding, as if the adventure had continued in the
original ship for so long as justifiable under the contract of affreightment
and the applicable law.
4)
The proportion attaching to cargo of the allowances made in general average by
reason of applying the third paragraph of this Rule shall not exceed the cost
which would have been borne by the owners of cargo if the cargo had been
forwarded at their expense.
No
jettison of cargo shall be allowed as
general average, unless such cargo is carried in accordance with the recognised
custom of the trade.
RULE II.
LOSS OR DAMAGE BY SACRIFICES FOR THE COMMON SAFETY
Loss
of or damage to the property involved in the common maritime adventure by or in
consequence of a sacrifice made for the common safety, and by water which goes
down a ship's hatches opened or other opening made for the purpose of making a
jettison for the common safety, shall be allowed as general average.
RULE III.
EXTINGUISHING FIRE ON SHIPBOARD
Damage
done to a ship and cargo, or either of them, by water or otherwise, including
damage by beaching or scuttling a burning ship, in extinguishing a fire on
board the ship, shall be allowed as general
average; except that no allowance shall
bemade for damage by smoke however caused or by heat of the fire.
Loss
or damage sustained by cutting away wreck or parts of the ship which have been
previously carried away or are effectively lost by accident shall not be allowed as general average.
When
a ship is intentionally run on shore for the common safety, whether or not she
might have been driven on shore, the consequent loss or damage to the property
involved in the common maritime adventure shall be allowed in general average.
(a) Salvage payments, including interest thereon and legal fees
associated with such payments, shall lie where they fall and shall not be
allowed in General Average, save only that if one party to the salvage shall
have paid all or any of the proportion of salvage (including interest and legal
fees) due from another party (calculated on the basis of salved values and not
General Average contributory values), the unpaid contribution to salvage due
from that other party shall be credited in the adjustment to the party that has
paid it, and debited to the party on whose behalf the payment was made.
(b) Salvage payments referred to in paragraph (a) above shall
include any salvage remuneration in which the skill and efforts of the salvors
in preventing or minimising damage to the environment such as is referred to in
Art. 13 paragraph 1(b) of the International Convention on Salvage 1989 have
been taken into account.
(c) Special compensation payable to a salvor by the shipowner
under Art. 14 of the said Convention to the extent specified in paragraph 4 of
that Article or under any other provision similar in substance (such as SCOPIC)
shall not be allowed in General Average and shall not be considered a salvage
payment as referred to in paragraph (a) of this Rule.
RULE VII.
DAMAGE TO MACHINERY AND BOILERS
Damage
caused to any machinery and boilers of a ship which is ashore and in a position
of peril, in endeavouring to refloat, shall be allowed in general average when
shown to have arisen from an actual intention to float the ship for the common
safety at the risk of such damage; but where a ship is afloat no loss or damage
caused by working the propelling machinery and boilers shall in any
circumstances be allowed as general average.
RULE VIII.
EXPENSES LIGHTENING A SHIP WHEN ASHORE AND CONSEQUENT DAMAGE
When
a ship is ashore and cargo and ship's fuel and stores or any of them are
discharged as a general average act, the extra cost of lightening, lighter hire
and re-shipping (if incurred), and any loss or damage to the property involved
in the common maritime adventure in consequence thereof, shall be allowed as general average.
RULE IX.
CARGO, SHIP'S MATERIALS AND STORES USED FOR FUEL
Cargo,
ship's materials and stores, or any of them, necessarily used for fuel for the
common safety at a time of peril, shall be allowed
as general average, but when such an allowance is made for the cost of ship's
materials and stores the general average shall be credited with the estimated
cost of the fuel which would otherwise have been consumed in prosecuting the
intended voyage.
RULE X.
EXPENSES AT PORT OF REFUGE, ETC.
(a)
(i) When a ship shall have
entered a port or place of refuge or shall have returned to her port or place
of loading in consequence of accident, sacrifice or other extraordinary
circumstances which render that necessary for the common safety, the expenses
of entering such port or place shall be allowed
as general average; and when she shall have sailed thence with her original
cargo, or a part of it, the corresponding expenses of leaving such port or
place consequent upon such entry or return shall likewise be allowed as general average.
(ii) When a ship is at any port
or place of refuge and is necessarily removed to another port or place of refuge because repairs cannot be carried out in
the first port or place, the provisions of this Rule shall be applied to the
second port or place of refuge as if it were
a port or place of refuge and the cost of such removal including temporary
repairs and towage shall be allowed as general
average. The provisions of Rule XI shall be applied to the prolongation of the
voyage occasioned by such removal.
(b)
(i) The cost of handling on
board or discharging cargo, fuel or stores whether at a port or place of
loading, call or refuge, shall be allowed as
general average, when the handling or discharge was necessary for the common
safety or to enable damage to the ship caused by sacrifice or accident to be
repaired, if the repairs were necessary for the safe prosecution of the voyage,
except in cases where the damage to the ship is discovered at a port or place
of loading or call without any accident or other extraordinary circumstances
connected with such damage having taken place during the voyage.
(ii) The cost of handling on
board or discharging cargo, fuel or stores shall not be allowable as general average when incurred solely for the
purpose of restowage due to shifting during the voyage, unless such restowage
is necessary for the common safety.
(c)
Whenever the cost of handling or discharging cargo, fuel or stores is allowable as general average, the costs of
storage, including insurance if reasonably incurred, reloading and stowing of
such cargo, fuel or stores shall likewise be allowed
as general average. The provisions of Rule XI shall be applied to the extra
period of detention occasioned by such reloading or restowing.
But
when the ship is condemned or does not proceed on her original voyage, storage
expenses shall be allowed as general average
only up to the date of the ship's condemnation or of the abandonment of the
voyage or up to the date of completion of discharge of cargo if the
condemnation or abandonment takes place before that date.
RULE XI.
WAGES AND MAINTENANCE OF CREW AND OTHER EXPENSES PUTTING
IN TO AND AT A PORT OF REFUGE, ETC.
(a)
Wages and maintenance of master, officers and crew reasonably incurred and fuel
and stores consumed during the prolongation of the voyage occasioned by a ship
entering a port or place of refuge or returning to her port or place of loading
shall be allowed as general average when the
expenses of entering such port or place are allowable in general average in
accordance with Rule X(a).
(b)For the purpose of this and the other Rules wages shall
include all payments made to or for the benefit of the master, officers and
crew, whether such payments be imposed by law upon the shipowners or be made
under the terms of articles of employment.
(c)
(i) When a ship
shall have entered or been detained in any port or place in consequence of
accident, sacrifice or other extraordinary circumstances which render that
necessary for the common safety, or to enable damage to the ship caused by
sacrifice or accident to be repaired, if the repairs were necessary for the
safe prosecution of the voyage, fuel and stores consumed during the extra
period of detention in such port or place until the ship shall or should have
been made ready to proceed upon her voyage, shall be allowed
in general average, except such fuel and stores as are consumed in effecting
repairs not allowable in general average.
(ii)Port charges incurred during
the extra period of detention shall likewise be allowed
as general average except such charges as are incurred solely by reason of
repairs not allowable in general average.
(iii) Provided
that when damage to the ship is discovered at a port or place of loading or
call without any accident or other extraordinary circumstance connected with
such damage having taken place during the voyage, then fuel and stores consumed
and port charges incurred during the extra detention for repairs to damages so
discovered shall not be allowable as general
average, even if the repairs are necessary for the safe prosecution of the
voyage.
(iv) When the ship is condemned
or does not proceed on her original voyage, fuel
and stores consumed and port charges shall be allowed
as general average only up to the date of the ship's condemnation or of the
abandonment of the voyage or up to the date of completion of discharge of cargo
if the condemnation or abandonment takes place before that date.
(d)
The cost of measures undertaken to prevent or minimize damage to the
environment shall be allowed in general average when incurred in any or all of
the following circumstances:
(i) as part of
an operation performed for the common safety which, had it been undertaken by a
party outside the common maritime adventure, would have entitled such party to
a salvage reward;
(ii) as a
condition of entry into or departure from any port or place in the
circumstances prescribed in Rule X(a);
(iii) as a
condition of remaining at any port or place in the circumstances prescribed in
Rule XI(c), provided that when there is an
actual escape or release of pollutant substances the cost of any additional
measures required on that account to prevent or minimise pollution or
environmental damage shall not be allowed as general average;
(iv) necessarily
in connection with the discharging, storing or reloading of cargo whenever the
cost of those operations is allowable as
general average.
RULE XII.
DAMAGE TO CARGO IN DISCHARGING, ETC.
Damage
to or loss of cargo, fuel or stores sustained in consequence of their handling,
discharging, storing, reloading and stowing shall be allowed
as general average, when and only when the cost of those measures respectively
is allowed as general average.
RULE XIII.
DEDUCTIONS FROM COST OF REPAIRS
(a)
Repairs to be allowed ingeneral average shall not be subject to deductions in
respect of "new for old" where old material or parts are replaced by
new unless the ship is over fifteen years old in which case there shall be a
deduction of one third. The deductions shall be regulated by the age of the
ship from the 31st December of the year of completion of
construction to the date of the general average act, except for insulation,
life and similar boats, communications and navigational apparatus and
equipment, machinery and boilers for which the deductions shall be regulated by
the age of the particular parts to which they apply.
(b)
The deductions shall be made only from the cost of the new material parts when
finished and ready to be or parts when finished and ready to be installed in
the ship. No deduction shall be made in respect of provisions, stores, anchors
and chain cables. Drydock and slipway dues and costs of shifting the ship shall
be allowed in full.
(c)
The costs of cleaning, painting or coating of bottom shall not be allowed in
general average unless the bottom has been painted or coated within the twelve
months preceding the date of the general average act in which case one half of
such costs shall be allowed.
(a)
Where temporary repairs are effected to a ship at a port of loading, call or
refuge, for the common safety, or of damage caused by general average
sacrifice, the cost of such repairs shall be allowed as general average.
(b) Where temporary repairs of accidental damage are effected in
order to enable the adventure to be completed, the cost of such repairs shall
be allowed as general average without regard to the saving, if any, to other
interests, but only up to the saving in expense which would have been incurred
and allowed in general average if such repairs had not been effected there.
Provided that, for the purposes of this paragraph only, the cost of temporary
repairs falling for consideration shall be limited to the extent that the cost
of temporary repairs effected at the port of loading, call or refuge, together
with either the cost of permanent repairs eventually effected or, if unrepaired
at the time of the adjustment, the reasonable depreciation in the value of the
vessel at the completion of the voyage, exceeds the cost of permanent repairs
had they been effected at the port of loading, call or refuge.
(c)
No deductions "new for old" shall be made from the cost of temporary
repairs allowable as general average.
Loss
of freight arising from damage to or loss of cargo shall be allowed as general average, either when caused by
a general average act, or when the damage to or loss of cargo is so allowed.
Deduction
shall be made from the amount of gross freight lost, of the charges which the
owner thereof would have incurred to earn such freight, but has, in consequence
of the sacrifice, not incurred.
RULE XVI.
AMOUNT TO BE ALLOWED FOR CARGO LOST OR
DAMAGED BY SACRIFICE.
(a)
The amount to be allowed as general average
for damage to or loss of cargo sacrificed shall be the loss which has been
sustained thereby based on the value at the time of discharge, ascertained from
the commercial invoice rendered to the receiver or if there is no such invoice
from the shipped value. The value at the time of discharge shall include the
cost of insurance and freight except insofar as such freight is at the risk of
interests other than the cargo.
(b)
When cargo so damaged is sold and the amount of the damage has not been
otherwise agreed, the loss to be allowed in
general average shall be the difference between the net proceeds of sale and
the net sound value as computed in the first paragraph of this Rule.
RULE XVII.
CONTRIBUTORY VALUES
(a)
(i) The contribution to a
general average shall be made upon the actual net values of the property at the
termination of the adventure except that the value of cargo shall be the value
at the time of discharge, ascertained from the commercial invoice rendered to
the receiver or if there is no such invoice from the shipped value.
(ii) The value of the cargo
shall include the cost of insurance and freight unless and insofar as such
freight is at the risk of interests other than the cargo, deducting therefrom
any loss or damage suffered by the cargo prior to or at the time of discharge.