Jolien Kruit, PhD candidate at Erasmus School of Law, is no stranger to the world of maritime law. Her recent appointment as winner of the prestigious Albert Lilar Prize 2023 for her thesis "General Average, Legal Basis and Applicable Law. The Overrated Significance of the York-Antwerp Rules" confirms her contribution to maritime law. We spoke to Jolien about her career, research and experience as PhD candidate.
Jolien studied in Leiden, where her passion for maritime law originated. She explains how she ended up in maritime law: “In the first year of my training, we did not yet have a digital newspaper – because we are talking about 2000 – but a paper newspaper, and it always contained the announcements of the subjects. At one point, the subject of maritime law was also announced. And I remember thinking: who is going to do that? I became one of those who finally started doing that.” She has worked as a lawyer at Van Traa Advocaten N.V. since 2005.
Jolien took courses in commercial law and private international law in 2003 at the end of her bachelor's degree. From that moment on, she found the study interesting. “I actually did not find law very interesting until that moment, and I was thinking: what exactly? And then I started to delve deeper into it. I did the Maritime Law class in Leiden in 2004, and I also did maritime internships at law firms. I then did a Master in Maritime Law in England in Southampton. After that, I returned to one of the offices where I did my internship: Van Traa. I have been there for quite some time now and enjoy it.”
“I work in 'wet law', as it is so nicely called”
A PhD offered Jolien the freedom to think freely and explore her ideas. “As a lawyer, you have to think in the interests of your client, and your own beliefs are of secondary importance”, says Jolien.
Moreover, Jolien realised that the existing system of General Average, a subject that had not been published in maritime law for fifty years, may not have been well thought out from a legal perspective. This motivated her to investigate this further and develop her own point of view. “My thesis was not too long, so they thought it would be ideal to publish a small book of it. That is why I was quickly considered to be the expert in the market, and I started delving further into the subject”, she adds.
Jolien noticed her thesis was incomplete: “Of course, it is incomplete because it is a thesis, so it is limited.” But also, that the general average system may have been somewhat flawed from a legal point of view: “I started investigating that, also out of interest, so that I could say that with a little more confidence. And my position is indeed that it is not legally correct, but it does work in practice.”
One speaks of General Average when measures are taken to rescue ships and cargo from a shared danger. “It is said that there is worldwide uniformity because of certain rules that exist, but you have to declare those rules applicable. In fact, it is always assumed that the rules apply. The fact that there are multiple versions of this is often ignored, and it is expected that this will create a relationship between all parties to the maritime adventure”, says Jolien.
Jolien believes such a relationship can exist if it only concerns the classic parties involved: ship owner, cargo interested party and charterer. “But when many more parties are involved, such as the Ever Given, on which 14,000 containers were transported, it is difficult to bring everyone together contractually”, she adds.
According to Jolien, the questions arise: “What should we look at? Which rules apply? How do they apply? In practice, no one asks those questions, which is very pragmatic but can raise some questions from a legal perspective.”
According to Jolien, the general average system needs to be properly developed legally. “It is a system that has developed in practice and has been used for 2000 years. The system has actually grown with the current times, so not with the law. The prevailing thought: We are all on the ship together, so we are all bound to this system, right? While legally speaking world is no longer like that.”
“Someone shouts the General Average word as a kind of magic word and then everyone stands at attention”
Jolien and her PhD trajectory
Jolien obtained her PhD after years of working with maritime law. She thought that was a nice sequence because you can test the science against practice and see whether your work is needed. “But even if you do a PhD immediately after your training, I think it is important to look for a link with that practice and to have a lot of consultation there. So do not disappear into the ivory tower, your study room.”
Jolien has already worked a lot with General Average, which was one of the motivations for starting her research. “I wanted to get clarity for myself, so that will help you to continue searching. At the same time, I think it also helps that I have been working in practice for some time, so I can also imagine that taking that freedom is more difficult if you have completed your master's degree and have no practical work experience yet. So that might also be an argument in flavour of looking for that practice first. It is a step to start doing that in addition to your work. Writing a dissertation takes a lot of time and I think you should realise in advance that you will not just do it on the side. At the same time, it is great fun and I can only recommend it to everyone to do it in order to think things through.” Jolien's colleagues have always supported her. “The office has always supported me with this project, so that is very nice. The wet law is not a practice that is the same every day and that can be very planned, so you have to be flexible with it.”
Jolien really enjoyed the supervision during her PhD. “I was given a lot of freedom, I could do my own thing and I had ample opportunity to discuss this further with my supervisor, Frank Smeele, and he is of course extremely inspiring.” Jolien: “I experienced the collaboration as very positive and very pleasant. Every prospective PhD candidate should think carefully about how much guidance he or she wants. Ultimately it is your story, and you will have to deal with it yourself. At the same time, you have to maintain sufficient coordination and find a balance.”
Frank Smeele: “In her work, Jolien cleverly brings together science and practice of maritime law. In her dissertation she investigated the application of the doctrine of General Average, a legal principle with a rich history of approximately 2,700 years! But for Jolien it is about how this principle can be applied to problems of the present. She has succeeded very well in this and the award by the CMI of the honourable Albert Lilar Prize is more than deserved.”
What has Jolien's research achieved?
Jolien: “General Average is a stamp area of law, so it does not immediately receive worldwide attention. It has been applied worldwide and the book is also in all kinds of people's libraries worldwide. So fantastic to that extent, but it is relative. At the same time, I do know that my book was used as a production in a cassation case in England at The Supreme Court, so that is very nice."
Albert Lilar Prize 2023
Jolien: “My supervisor Frank Smeele brought this to my attention. He told me to send in my book, so I did that, and it was successful, so that is nice. Extraordinarily little publicity has been given to that prize. It is on the CMI website, where recruitment has also taken place. The CMI is the global maritime law association and all national maritime law associations are affiliated with that international association, so that way it trickles down and everyone worldwide could submit their publication.”
Jolien was pleased to receive the award. “That is of course great fun. It was also a bit surreal, because I defended my dissertation about six years ago, so it is no longer something with which you are overly concerned. But of course, it is really cool, and I have received a lot of positive responses from the industry. I have done further research into General Average in recent years. In particular to sharing mechanisms, because General Average is a mechanism for sharing certain financial burdens and to what extent we should not use it to help combat the greatest danger of our time, the climate crisis. A book will be published at the end of this year about carbon free shipping with a chapter by me 'The Future Is General Average', so I will further substantiate that.”
Albert LilarJolien: “Albert Lilar was chairman of the Maritime International Committee and also of the Belgian Maritime Law Association for a long time. He has set up a fund that could continue research into Maritime Law and uniformity after his death and has therefore attached a prize to support that research.”
A grant is now also available through the Erasmus Trust Fund. Jolien has converted her prize into a scholarship, so that someone can follow a master degree next year.
Jolien's plans for the future
Jolien: “In addition to my work as a lawyer, I am also working on making shipping more sustainable. In the context of General Average, but also beyond that, I believe that we as lawyers should play a much greater role in this. I don't think lawyers should just be the tape under their shoes, but also have to do a little gluing every now and then. So, I do the necessary with that and I am also working on publications. Moreover, I have enjoyed teaching the Master Maritime & Transport Law at Erasmus School of Law for years and I am happy to continue doing so.”