Average, a term found in two main senses. (1) The first, which occurs in old law, is from a Law-Latin averagium, and is connected with the Domesday Book avera, the "day's work which the king's tenants gave to the sheriff"; it is supposed to be a form of the O. Fr. ovre (oeuvre), work, affected by aver, the O. Eng. word for cattle or property, but the etymology is uncertain. As meaning some form of feudal service rendered by tenants to their superiors, it survived for a long time in the Scottish phrase "arriage and carriage," this form of the word being due to a contraction into "arage." (2) The second word, which represents the modern usages, is also uncertain in its derivation, but corresponded with the Fr. avarie, and was early spelt "averays," recurring also as "avaria," "averia," and meaning a certain tax on goods, and then more precisely in maritime law any charge additional to "freight" (see Affreightment), payable by the owner of goods sent by ship. Hence the modern employment of the term for particular and general average (see below) in marine insurance.
The essential of equitable distribution, involved in this sense, was transferred to give the word "average" its more colloquial meaning of an equalization of amount, or medium among various quantities, or nearest common rate or figure. (For a discussion of the etymology, see the New English Dictionary, especially the concluding note with reference to authorities.)
Average, in modern law, is the term used in maritime commerce to signify damages or expenses resulting from the accidents of navigation. Average is either general or particular. General average arises when sacrifices have been made, or expenditures incurred, for the preservation of the ship, cargo and freight, from some peril of the sea or from its effects. It implies a subsequent contribution, from all the parties concerned, rateably to the values of their respective interests, to make good the loss thus occasioned. Particular average signifies the damage or partial loss happening to the ship, goods, or freight by some fortuitous or unavoidable accident. It is borne by the parties to whose property the misfortune happens or by their insurers. The term average originally meant what is now distinguished as general average; and the expression "particular average," although not strictly accurate, came to be afterwards used for the convenience of distinguishing those damages or partial losses for which no general contribution could be claimed.
Although nothing can be more simple than the fundamental principle of general average, that a loss incurred for the advantage of all the coadventurers should be made good by them all in equitable proportion to their stakes in the adventure, the application of this principle to the varied and complicated cases which occur in the course of maritime commerce has given rise to many diversities of usage at different periods and in different countries. It is soon discovered that the principle cannot be applied in any settled or consistent manner unless by the aid of rules of a technical and sometimes of a seemingly arbitrary character. The difficulty, which at one time seemed nearly insuperable, of bringing together the rules in force in the several maritime countries, has been to a large extent overcome - not by legislation but by framing a set of rules covering the principal points of difference in such a manner as to satisfy, on the whole, those who are practically concerned, and to lead them to adopt these History of the York-Antwerp rules. rules in their contracts of affreightment and contracts of insurance (see Insurance: Marine). The honour of the achievement belongs to a small number of men who recognized the need of uniformity.
The work began in May 1860 at the congress held at Glasgow, under the presidency of Lord Brougham, assisted by Lord Neaves. Further congresses were held in London (1862), and at York (1864), when a body of rules known as the "York Rules" was agreed to. There the matter stood, until it was taken up by the "Association for the Reform and Codification of the Law of Nations" at conferences held at the Hague (1875), Bremen (1876) and Antwerp (1877). Some changes were made in the "York Rules"; and so altered, the body of rules was adopted at the last-named conference, and was styled the "York and Antwerp (or York-Antwerp) Rules." The value of these rules was quickly perceived, and practical use of them followed. But they proved to be insufficient, or unsatisfactory, on some points; and again, in the autumn of 1890, a conference on the subject was held, this time at Liverpool, by the same Association, under the able presidency of Dr F. Sieveking, president of the Hanseatic High Court of Appeal at Hamburg. Important changes were then made, carrying further certain departures from English law, already apparent in the earlier rules, in favour of views prevailing upon the continent of Europe and in the United States. The new rules were styled the York-Antwerp Rules 1890. In practice they quickly displaced those of 1877; and in 1892, at a conference of the same Association held at Genoa, it was formally declared that the only international rules of general average having the sanction and authority of the association were the York-Antwerp Rules as revised in 1890, and that the original rules were rescinded.
It is this later body of rules which is now known as the York-Antwerp Rules. Reference is now to be found in most English contracts of carriage and contracts of insurance, to these rules, as intended to govern the adjustment of G.A. between the parties; with the result that (so far as the rules cover the ground) adjustments do not depend upon the law of the place of destination, and so do not vary according to the destination, or the place at which the voyage may happen to be broken up, as used formerly to be the case.
The rules are as follows: -