Declaring of general average by Meeusen in connection with the sagging, breaking, and sinking (6 July 2011) of its push barge Maasdijk during the transhipment of a cargo of ferrochrome owned by CCMA from the seagoing ship Anastasia K. The barge and the cargo were recovered at the instruction of Meeusen. According to the average adjustment issued on 13 February 2012 by adjuster Schoutens CCMA's contribution in general average amounted to EUR 560,548.90. Meeusen applied to the court to have the average adjustment homologated, to which CCMA was opposed.

Held: The general average is governed by Dutch law and therefore also - via art 8:1022 of the Dutch Civil Code (DCC) and the Royal Decree of 5 February 2000 - the Rhine Rules IVR 1979 (edition 1996). The statutory provisions are largely based on the Rhine Rules. Article 8:1020 defines general average as the sacrifices and expenditure reasonably made and/or incurred, in extraordinary circumstances, for the purpose of saving a vessel and its cargo from a common peril, irrespective of how and by whomsoever this peril arises. It follows from Rhine Rule III (virtually identical to Rule D of the York-Antwerp Rules) that the adjuster assesses the general average without taking into account the issue of fault. In the homologation procedure, in which the average adjustment is judicially confirmed, only defences against the adjustment can be raised. As the question of fault is not dealt with in the average adjustment, the question of fault (of the person demanding a contribution) cannot be an issue in the homologation procedure.

The view that this rule has been abandoned in judicial opinion is incorrect. It is added that, in provisional measures proceedings, or in proceedings on the merits in which a general average contribution is claimed, or in which a declaratory judgment is demanded with regard to the duty to contribute, the question of fault may be an issue, but not in the homologation procedure.

This rule is not contrary to Rhine Rule III. It must be concluded from the explanatory notes to Rule III that the drafters have weighed the interests of those who will have to contribute in general average without being able to raise the issue of fault against the interests of those who have made the sacrifices, and have decided in favour of the latter. This avoids the situation where the person who takes action to save ship and cargo would be overly guided by the question whether the expenses can be recovered. The explanatory notes also make the point that Rule III states, on the one hand, that the origin of the danger does not influence the general average character of the measures taken for the common safety but, on the other hand, it does not prejudice the possibility of recourse against the party at fault in accordance with the statutory provisions or the terms of the contract of carriage. In the legislative history relating to art 8:612 DCC it is mentioned that the principle of the York-Antwerp Rules is adopted. Being so, it is irrelevant how the danger came about. This is contrary to the view of Cleveringa that the party who caused the danger through its fault or breach of contract cannot claim a contribution in the general average expenses borne by it.

It follows from this that the Rhine Rules give the possibility to (first) have the average adjustment homologated and (if desired) a subsequent or separate procedure on the issue of fault. It cannot be ruled out that relying on the rule that the average adjustment is homologated without assessment of the issue of fault may under certain circumstances be unacceptable according to the criteria of reasonableness and fairness (good faith). However, having taken into account the ratio behind the rule and the fact that Meeusen has provided security to CCMA for the amount possibly paid in excess and the fact that no specific circumstances have been stated, there is no case for applying art 6:2 of the DCC (good faith).

Nor is the rule contrary to art 6 of the European Convention on Human Rights, as it is possible to raise a defence in the homologation procedure against the characterisation of the incident as general average, and against the calculations in the adjustment for the expenditures and the contribution. Only defences relating to the issue of fault are kept out of the homologation procedure, but the respondent is not deprived of the right to raise those issues in separate proceedings. This is not changed by the fact that the average adjustment becomes an enforceable title when the judgment of homologation is no longer subject to appeal.

The fact that the adjuster was appointed unilaterally does not affect the character of the average adjustment.

The fact that the cargo and the ship were raised separately does not alter the fact that the entire salvage operation can be regarded as one and the same measure to free ship and cargo from the common danger. It cannot be said that there is no connection whatsoever between the discharging of the cargo and the raising of the ship.