General average is considered to be one of the most uniformly regulated topics of maritime law. This study concludes that this perception is flawed. The invariably applicable York-Antwerp Rules do not provide a full regime, whereas their applicability is generally contractual only. As a result, questions arise as to which law applies to general average obligations, how the applicable national law is to be determined (taking into consideration the impact of the European Rome I and II Regulations), and what is provided in the national regimes. In addition, questions arise as to what the influence is of contractual provisions set out in contracts for the carriage of goods by sea and general average security forms, and how the various sources interact. This study contains an in depth assessment of these questions.
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Jolien Kruit is a partner in the law firm Van Traa Advocaten N.V. in Rotterdam, which is specialised in transport, international trade and insurance law. Besides her work as an attorney at law, Jolien regularly publishes and lectures on various aspects of maritime law and is a member of the general average committee of the Dutch Transport Law Association.
1 Introduction
1.1 Unravelling general average’s uniformity myth
1.2 The maritime particularism general average
1.3 Order and scope of the study
2 A modern concept with ancient roots; general average’s historical
development and current practice
2.1 Distribution of losses and costs
2.2 Development of the general average concept
2.3 Apportionment in practice
2.4 Evaluation
3 Positioning general average in the legal order
3.1 Legal justification of the right to claim a general average contribution
3.2 Absence of internationally uniform regulation and insufficiency of YAR as legal basis
3.3 Legal bases of general average claim in national law
3.4 Evaluation
4 Effectuating a right to a general average contribution
4.1 Introduction
4.2 General average definitions
4.3 Adjuster
4.4 Adjustment
4.5 General average contributors and creditors
4.6 Measures to safeguard payment of a general average contribution
4.7 Influence of (actionable) fault
4.8 Time bars
4.9 Evaluation
5 Absence of a universal conflict of law rule for general average
5.1 Background
5.2 Uncodified universal private international law rule on general average?
5.3 Legal basis of conflict of law rule
5.4 Evaluation
6 General average and the ‘Rome I and II Regulations’
6.1 Introduction
6.2 Applicability of the Rome I and II Regulations
6.3 Rome I and Rome II’s conflict of law rules
6.4 Rome I or Rome II?
6.5 General average obligations under Rome I and Rome II
6.6 Rome I and II Regulations’ insufficiency to regulate general average
6.7 Inclusion of a conflict of law rule for general average in Rome I and/or Rome II?
7 Conclusion
Summary
Samenvatting
Curriculum vitae
Acknowledgements
Legislations and Conventions
Other rules
Case Law
Bibliography
Index A – Keywords
Index B – Authors
Appendix A – YAR 1994, 2004, 2016
Appendix B – CMI Guidelines relating to General Average