“according to the contract of affreightment and/or the governing law and practice”
The corresponding words in the Clauses were “… according to Foreign Statement or to York/Antwerp Rules if in accordance with the contract of affreightment”.
Some expansion is required, over and above a mere undertaking to pay general average and salvage charges, since by virtue of English law and practice, it is implicit that underwriters will respond, even under the simplest form of policy form without any other additions, for general average contributions and the proportion of salvage charges attaching to the insured interest, but only for such amounts as would be recognised as general average or “salvage charges” by English law and practice.
The vast majority of general average adjustments are drawn up in accordance with the York/Antwerp Rules, by virtue of a clause in the bill of lading or charter-party stipulating for such adjustment according to the current version of those rules.
It is probably to be regretted that this Clause in its present form does not accord recognition to this virtually universal practice. However, the same effect is achieved by the use of the words “according to the contract of affreightment”, with the added advantage to the assured that if the general average clause in the bill of lading or charter-party should stipulate either for some other rule to apply (for example, the so-called Peking (Beijing) Rules) then the underwriters will respond (subject to the rule regarding under-insurance) for the general average contribution payable by their assured in accordance with such other rules.
If the bill of lading or charter-party should be silent as to the manner in which any general average should be adjusted, the law of all maritime countries is that the adjustment should be prepared in accordance with the law and practice obtaining at the port where the ship and goods part company.
The words “the governing law and practice” apply not only to protect this principle in regard to the adjustment of general average when there is no relevant provision in the contract of affreightment, but also, it is submitted, to the “determination” of salvage charges if the same are not, as explained above, brought into a general average adjustment under Rule VI of the York/Antwerp Rules, 1974. An example would be when the efforts of a salvor have been directed not to all the property at risk, but merely to save some particular interests.
