The issue was whether the York-Antwerp Rules 1994 (the YAR 1994) or the York-Antwerp Rules 2016 (the YAR 2016) were applicable under the standard Congenbill 1994 form, which provides: 'General average shall be adjusted, stated and settled according to York-Antwerp Rules 1994, or any subsequent modification thereof, in London unless another place is agreed in the Charter Party'.

The claimant carrier argued that later versions of the YAR were new sets of Rules, and thus not 'modifications' of the YAR 1994. The defendant insurers argued that the incorporating formula had a clear and unambiguous meaning. It was intended to function as an inbuilt updating mechanism, and it made the most recent version of the YAR (ie the YAR 2016) applicable.

Held: Judgment for the defendant insurers. It was agreed that the general average adjustment was to be conducted under the YAR 2016.

The words in the standard Congenbill 1994 form are reasonably to be understood as capable of applying to a new version of the YAR. A reasonable person would not have understood the parties to have been drawing such a technical distinction. On the contrary, had the narrower effect advanced by the claimant been intended, the parties would not have used the words 'any … modification'. There is no difficulty, as a matter of the ordinary use of language, in describing the YAR 2004 or the YAR 2016 as 'modifications' of the YAR 1994. Each was produced by the Comité Maritime International (CMI), was directed to the same end, and contained many of the same provisions, but introduced some changes.

The claimant relies on the Commentary on the York-Antwerp Rules 2004 produced by the Association of Average Adjusters. As to that part which says that it was agreed at the CMI Vancouver Conference that the YAR should be given the title of YAR 2004 'to make it clear that these were not simply an amendment to or modification of the 1994 Rules', this is not a reference to any travaux préparatoires produced by the CMI, and no material, such as an official record of the proceedings, has been adduced to show any such agreement. It is not easy to square with the CMI's summary of the YAR 2004, which refers to the 'amendments' made to the YAR 1994, or the CMI's resolution which itself refers to the 'amendments which have been made to the [YAR 1994]'. The other sources relied on by the claimant amount to opinions only.

The relevant words in the standard BIMCO form have effectively incorporated the YAR 2016 into the relevant contract(s). The claimant argued that had the parties intended to incorporate the YAR 2016, they would have used the Congenbill 2016 form. This point was answered by the defendants' submission that, had the parties actually wanted to ensure that the YAR 1994 were incorporated, they could have used the Congenbill 2007, which provides for YAR 1994 simpliciter. As it was, they did not, but instead used a form which specifically provided for the incorporation of subsequent modifications of the YAR 1994.