Navalmar UK Ltd v Ergo Versicherung AG & Anor (BSLE SUNRISE) [2019]

Navalmar UK Ltd v Ergo Versicherung AG & Anor (BSLE SUNRISE) [2019] EWHC 2860 — 4 November 2019 (His Honour Judge Pelling QC)

“The Commercial Court held that the "actionable fault" defence under Rule D of the York Antwerp Rules is available to the issuer of a General Average guarantee in the standard wording approved by the Association of Average Adjusters and the Institute of London Underwriters. Under this form, the guarantor has the obligation to "... pay any contributions to General Average ... which may hereafter be ascertained to be properly due ...". The Court found that the word "due" means the same as legally owing or payable; but GA does not become owing or payable unless and until a court rules on the merits of a Rule D defence ("properly"). This conclusion was meant to be in accordance with the settled practice and understanding of the shipping industry such that only very clear wording could justify departing from it.”

Antonino Cordopatri
E. G. Arghyrakis & Co.
06th November 2019