York Antwerp Rules
Page 242
CHAPTER 35
Rule XXIII: Time Bar for Contributing to General Average
Rule XXIII: Time Bar for Contributing to General Average
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(a) Subject always to any mandatory rule on time limitation contained in any applicable law:
- (i) Any rights to general average contribution including any rights to claim under general average bonds and guarantees, shall be extinguished unless an action is brought by the party claiming such contribution within a period of one year after the date upon which the general average adjustment is issued. However, in no case shall such an action be brought after six years from the date of termination of the common maritime adventure.
- (ii) These periods may be extended if the parties so agree after the termination of the common maritime adventure.
- (b) This rule shall not apply as between the parties to the general average and their respective insurers.
Time bars under English law
Statutory
35.01 Under section 5 of the English Limitation Act, 1980 there is a limitation period of six years for actions founded on “simple contracts”, after which the action will be time barred. This raises the age-old debate whether the origins of general average are contractual or arise by universal usage under the law maritime. However its origins, modern-day law and practice concur that the obligation to contribute in general average is contractual in nature, and time begins to run when the cause of action accrues.Contractual: under policies of insurance
35.02 It was settled by Chandris v. Argo Insurance Co. Ltd.1 that the claims arose when sacrifices were made and expenditure incurred, not at the time when the claims were quantified by issue of adjustment.Contractual: under charterparty
35.03 When the charterparty imposes a shorter time for the limitation of actions (as, for example, in the Centrocon Arbitration Clause), it was held in the Astraea (AlmaPage 243
Contractual: under bill of lading
35.05 Subject to any specific contractual provisions in the bill of lading, contracts of carriage which are subject to the Hague or Hague-Visby Rules provide that the carrier and the ship shall be discharged from liability unless suit is brought within one year of the date of delivery of the goods (or the date on which the goods should have been delivered). However, neither the Hague nor the Hague-Visby Rules impose a time bar for a claim for general average contribution, for which when English law applies, the period of limitation runs for six years from the accrual of the cause of action. 35.06 Some bills of lading incorporate limitation provisions (such as the Centrocon Arbitration Clause), in which event the bill of lading holders are as much bound or entitled as the parties to the charter.Contractual: by average bond, guarantee or undertaking
35.07 The authors consider it to be quite remarkable that the first reported record of the effect on the parties entering into a form of average bond was in the note of a judgment of McNair J. in Chambers in an unrecorded case in the 1960s.4 The learned judge is reported to have ruled that the consignee enters into:new obligations which are created by valid consideration: the shipowner gives up valuable rights of lien […] in exchange for the obligations in Lloyd’s Average Bond. […] One of the purposes of the LAB procedure is to crystallise the situation and so that the parties need not have regard to time limit provisions in other documents.