(By VIDYA VENUGOPAL, National University of Advanced Legal Studies, Cochin.)
Deviation in the course of voyage
Deviation is described by Scrutton as thus- In the absence of express stipulations to the contrary, the owner of a vessel impliedly undertakes to proceed in that ship by a usual and reasonable route without unjustifiable departure from that route and without unreasonable delay. This undertaking of the ship-owner is to be understood with reference to the circumstances that arise during the performance of the contract. Deviation is not just straying from the route, but may also include a deliberate reduction of speed along the route. However he is not answerable for delays or deviations which are occasioned or become necessary without default on his part.
The ship therefore ought to take the most direct, safe, course to her destination subject to her customary practice. If the voyage is to a round of ports they ought to be taken in the order in which they are named in the contract. However if the intended place of call have not been named, but rather denoted by a general description, then they must be taken in the order in which they occur on the agreed voyage. Where however there is a settled usage for ships upon the agreed voyage to take some particular course, or to call at particular intermediate ports, that usage will form part of the contract, unless it is expressly excluded. In such cases extrinsic evidence is admissible as to what is the usual and customary route between the termini of the voyage and if the ship has followed that route then she has not deviated from the contract voyage. In Frenkel v. MacAndrews, the bill of lading stated that the goods were destined for Liverpool. However the ship proceeded towards Cartagena but was lost in a storm. The shipper contended that the ship had deviated. However on evidence being adduced that the she was on her usual commercial route of calling at Malaga and therefore she was on her contract voyage when she was lost.
Further more a departure by the vessel from the geographical route to a bunkering port for consideration of cheapness and convenience does not amount to a deviation. The test applied is “Was the departure necessary in the business sense?” Similarly calling at whether stations to inquire about ice or a call at a usual coaling port are not departures from the usual and customary course of the voyage. However the taking of a vessel in tow is equivalent to a deviation.
The law was appropriately summed up by Lord Porter in the case of Reardon Smith Line v. Black Sea and Baltic General Insurance thus
“It is the duty of the ship when sailing from one port to another to take the usual route between those two ports. If no evidence is there then the route is presumed to be the direct geographical route, but it may be modified in many cases, for navigational and other reasons, and evidence may always be given to show what the usual route is, unless a specific route is prescribed by the charter party or the bill of lading.”
1) Deviation to save property
A deviation purely for the purpose of saving property belonging to third persons is not justifiable at common law. This was evident from the decision of Scaramanga v. Stamp. Here the steamer Olympia carrying a cargo of wheat for the charterparty spotted anothership in distress. The weather was fine and there would have been no difficulty in taking off the crew. However an agreement was reached whereby Olympia was to tow the ship for a specified amount. However on the way the Olympia and her cargo were lost
in sea. It was held that the deviation was not justifiable and therefore the shipowner was liable for the loss.
2) Deviation to avoid danger
Where the safety of the adventure under the master’s control requires that he should delay, or go out of his course, he is not only justified in doing so, but that becomes his duty in the right performance of the contract made with the owners of the cargo. Thus the master is entitled to delay in a neutral port if he is under a reasonable apprehension of capture by hostile cruisers.
3) Temporary obstacle
The master is not justified in altering the course of the voyage in such a way as to make a substantially different voyage from that which was agreed upon, in order to avoid a merely temporary impediment or danger. In Crosby v. Fitch a vessel bound from New York to Norwich in Connecticut performed her voyage by going out to sea to the south of Long Island, instead of by the regular route through Long Island Sound, which was obstructed by ice at the time. It was held that the deviation was not justified and that the ship-owners were liable for a loss by perils of the sea.
4) Danger peculiar to ship or to cargo
A deviation may be justified although the danger to be avoided threatens the ship only and not the cargo. The master is bound to make all reasonable efforts for the safety of each portion of the cargo. But he is not generally bound to deviate from his course in order to preserve a part of it. Thus it cannot be contended that if the goods on board became wet while on voyage and liable to be damaged, the master would be bound to put
into the nearest port in order to transship and dry the cargo. On the other hand the master is bound to take into account the interests of the cargo as well as those of the ship. And if it is reasonable and prudent to deviate in order to do necessary repairs, he ought to do so, though that may be in the interest of the cargo only. In Phelps v. Hill the master having put into Queenstown for distress proceeded for repairs towards Bristol where the ship-owners had a repairing yard. However on the way the ship was sunk by a collision with another vehicle. In an action by the cargo owners it was contended that the proceeding to Bristol was a deviation which was not justified. However it was held that the maser had exercised the discretion of a reasonable man in the interests of the ship and the cargo in going to Bristol.
5) Deviation necessitated by unseaworthiness
A deviation to a port of refuge that is reasonably necessary to save the ship from sea perils is justifiable even though the ship was unseaworthy, and though, but for that unseaworthiness, she would not have been in any danger. A master is not only justified in deviating but bound to do so if the safety of the adventure is threatened.
6) Deviation to save life
The master may deviate, either by going out of course, or by delaying, in order to assist or save the lives of those on board another vessel in distress. However he is not justified in deviating for the mere purpose of saving property, nor in continuing a deviation, made in the first instance to save life, after that has been effected, with a view of rescuing the property also.
7) Liberty Clauses
A deviation may also be justified by the terms of a specific clause in the bill of lading or charterparty giving the ship-owner a ‘liberty’ to call at additional ports during the voyage. However courts tend to construe these narrowly. In Glynn v. Margetson on a voyage from Malaga to Liverpool, the ship-owner deviated from the direct route to a port on the East Coast of Spain. This delay caused damage to the cargo of oranges. It was held that the liberty clause contained in the bill of lading was restricted to ports in the course of voyage and therefore did not cover this particular deviation.
The Hague and Hague-Visby Rules both provide in Art IV(4) a liberty for the carrier to make ‘reasonable deviations’.In Stag Line Ltd v. Foscolo Mango and Co Ltd a deviation to take on replacement crew was ‘reasonable’ although not the subsequent route taken out of the port of which sacrificed safety for speed.
Hague and Hague- Visby Rules
In Stag Line Ltd it was held that the doctrine of deviation subsists even when the Hague Rules apply. The argument that the Rules were a self contained code was rejected. Whether the common law doctrine of deviation should be disregarded in deciding whether a ship-owner can rely on the defence of an exception provided by the Hague-Visby Rules would depend by reference to the language of the Rules themselves
Effect of deviation
Where a vessel has deviated from her proper course, the ship-owner is not only liable for the delay, but he becomes responsible for any loss or damage that happens to the goods unless the goods owner waives the deviation, The ship-owner is not protected by
the exception of perils in the contract. In Thorley v. Orchis SS.Co locusts beans were shipped in a vessel which was bound for London. However the vessel did not protect directly to London but proceeded towards to ports in Asia Minor On arrival in London, the beans were damaged. The ship-owners were held liable notwithstanding an exception of negligence in the bill of lading. Specifically it was stated that a deviation is such a serious matter and changes the character of the voyage so essentially that a ship-owner who has been guilty of a deviation cannot be considered as having performed his part of the bill of lading contract, but something fundamentally different, and therefore he cannot claim the benefit of the stipulation in his favor contained in the bill of lading.
The precise effect of a breach of the obligation under a contract of carriage by sea to proceed without deviation was a matter of some doubt until the decision of the House of Lords in S.S Co. v. Tate & Lyle. In this case, a ship was chartered to proceed to Cuba for loading a cargo sugar and from there to a port in San Domingo and then proceed to Queenstown for orders. However after loading at Cuba, due to the default of the owner’s agents and post office authorities in Cuba, the owners failed to inform the master that he had been ordered to the port of San Domingo. Later when the parties became aware of the mistake, the master was ordered to return back to the port of Domingo and the ship after leaving this port became stranded. It was held by the House of Lords that the ship had deviated after leaving Cuba, but the charterers had waived the deviation. It was settled by this case, that the obligation not to deviate is a condition of the contract and that the breach of it entitles the goods-owner if he desires to treat the contract as repudiated. Further more it is open to the party not in default to treat the contract as at an end or to waive the breach and treat it as subsisting. Further more waiver of a deviation by a charterer will not usually affect the position of a consignee or indorsee to whom he has transferred the bills of lading. A voluntary and unwarranted deviation puts an end to the special contract, unless the goods owner waives it.
Effect of delay
As observed earlier, the ship must proceed with reasonable diligence, not only on the main contract voyage but also when proceeding under a charter party to the port of loading. The effect of delay on the contract of carriage appears to depend on the question whether or not the delay amounts to a deviation. Where the delay amounts to a deviation, the charterer is entitled to treat it as a breach of condition and to refuse to load the ship, but that where the delay does not amount to a deviation his remedy is in damages.
Delay amounts to a deviation when it is such as to substitute an entirely different service from that contemplated, it must make the voyage different from the contract voyage. The term deviation is sometimes loosely used to describe any delay beyond the shortest reasonable tome in which a voyage can be carried out but this is a misuse of words. The proper test to apply in order to decide whether there is a delay is whether that delay is such as to frustrate the commercial purpose of the venture. Where the neglect of the ship-owner to proceed to the port of loading with due diligence does not generally entitle the charterer to refuse to load. But when the delay is such as in effect to frustrate the intended adventure, the charterer will be entitled to reject the ship. In Mount v. Larkins it was a marine insurance case which decided that an unreasonable and unjustifiable delay in commencing a voyage amounted to a deviation and therefore discharged the insurer.
Further more if the ship is unfit to receive the cargo, and the delay entailed in making her fit would amount to a deviation, the charterer is entitled to rescind the charterparty. However if the defect of the ship had been remedied by the ship-owner, without such delay as to frustrate the adventure, probably the charterer would not have been entitled to reject the ship, though he might have claimed compensation for any loss sustained through the delay. Where a vessel is chartered for a specified period of time, the charterer will not be bound to take her if she can be made fit for the chartered service only after such delay as will frustrate the commercial purpose of the charterparty. In Snia Societa v. Suzuki the ship was unable to perform her chartered service for a period owing to unseaworthiness, and it was held by the Court of Appeal that the charterers were entitled to cancel the charter on the ground of frustration. The principle applicable for time charters is what applies to charters in general-only such delay as makes the chartered service something materially different from that which was contemplated, in the sense that the commercial object of the charter-party is frustrated, entitles the charterer to cancel the charterparty.
Damages for delay
Where the delay does not amount to deviation, damages will not be recoverable for loss or damage occurring during or after such delay unless the delay caused the loss or damage in question. Hence no damages will be recoverable for loss resulting were a vessel is stuck by lightning which she would have avoided had she sailed with reasonable dispatch. Damages for delay are recoverable if the event in question would not have occurred but for the delay and was in fact anticipated. Where the outbreak of war prevents the completion of a voyage, which but for the delay would have been completed before the war, the liability of the ship-owner depends on whether he ought to have reasonably foreseen such likelihood
Baughen, Simon, Shipping Law, 2nd ed., Cavendish Publishing Limited, 2001.
Carver’s Carriage by Sea, Vol.II: Colinvaux Raoul, 13th ed, Steven & Sons, 1982
1) Taylor v. G.N.Ry.(1866) L.R.1.C.P.
2) Cormack v. Gladstone (1809) 11 East 347
3) Frenkel v. MacAndrews  A.C. 545
4) Reardon Smith Line v. Black Sea and Baltic General Insurance
5) Scaramanga v. Stamp (1880) 4 C.P.D,316
6) Crosby v. Fitch (1838) 12 Conn. 410
7) Notara v. Henderson (1870) L.R 5 Q.B 354
8) Phelps v. Hill 1.Q.B.605
9) Glynn v. Margetson  AC 351
10) Kish v. Taylor  A.C. 604
11) Stag Line Ltd v. Foscolo Mango and Co Ltd  AC 328
12) Thorley v. Orchis SS.Co  1K.B.660
13) S.S Co. v. Tate & Lyle (1936) 41 Com.Cas.350
14) Leduc v. Ward (1936) 41 Com Cas. 350
15) Verren v. Anglo- Dutch Brick Co. (1929) 34 I.L.R 210
16) Snia Societa v. Suzuki (1924) 29 Com Cas. 284
17) HongKong Fir v. Kawasaki  2 Q.B. 26
18) Universal Cargo Carriers v. Citati  2 Q.B. 401
 Scrutton, Charterparties and Bills of Lading
 Taylor v. G.N.Ry.(1866) L.R.1.C.P.
 Cormack v. Gladstone (1809) 11 East 347
  A.C. 545
 Reardon Smith Line v. Black Sea Insurance  A.C. 562, 575
 (1880) 4 C.P.D,316
 (1838) 12 Conn. 410
 Notara v. Henderson (1870) L.R 5 Q.B 354
 Kish v. Taylor  A.C. 604
  AC 351
  AC 328
  1K.B.660
 (1936) 41 Com.Cas.350
 Leduc v. Ward.(1936) 41 Com Cas. 350
 Verren v. Anglo- Dutch Brick Co. (1929) 34 I.L.R 210
 Universal Cargo Carriers v. Citati  2 Q.B. 401
 HongKong Fir v. Kawasaki  2 Q.B. 26
 (1924) 29 Com Cas. 284