International Commercial Contracts Paper.

Carriers duty not to deviate

Duty not to deviate is a prescribed and implied condition in all voyage charter
parties.1 It is not hard to realize the significance of fulfilling this duty for the proper and
satisfactory performance of the charter party contract. Timely delivery is extremely
important for the shipper. One can easily imagine consequences for the shipper that may
arise from the failure to deliver goods on time. Notwithstanding which party of the sales
contract the shipper is it is his essential and primary interest to have the goods delivered
on time. Late delivery may not only result with the liability for the breach of contract,
both carriage and sales with all its consequences provided by law. Subsequently late
delivery may result in liability for damages for lost profits and anticipated contracts.
The carriage of goods by sea is a high-risk activity. Factors like distances,
weather, sea conditions, natural disasters, embargos, strikes, military actions and so forth
influence sea transport more than any other types of transportation and business
activities. Aforementioned factors may, with high probability affect the timelessness of
the delivery of the goods carried by sea. Bearing that in mind one can realize that
additional threat for timely delivery, such as deviation should be eliminated in advance.
Contrary to other obstacles deviation is usually predictable and dependent on the masters
will, so it can be contracted out.
Deviation means departure from the prescribed or ordinary route which the
ship should follow in fulfilment of a contract of carriage.2
If the parties of a contract had stipulated a route of the ship in the contract,
change of course and departure from this route shall constitute deviation. Situation
becomes more complicated when there were no contractual provisions about the route. In
practice very few standard charter forms make an express provision for the route to be
followed.3 In this case the ordinary trade route should be applicable. In the lack of
evidence the direct geographical route shall be presumed to be an ordinary or usual
route, but this presumption may be rebutted by the evidence of the practice actually
adopted in a particular trade or even in a particular shipping line.4

E.R.H. Ivamy, Carriage of Goods by Sea, 21, 13th ed. (1989)

2
id. 7
3
J.F.Wilson, Carriage of Goods by Sea, 17, 4th ed. (2001)
4
A.D. Hughes, Cases on Carriage of Goods by Sea, 80, 2nd edition (1994)

International Commercial Contracts Paper. Carriers duty not to deviate

In Reardon Smith Line Ltd v. Black Sea and Baltic Insurance Co.5 the
Reardons vessel Indian City, sailing from the port of Poti to Baltimore, USA called at
the port of Constanza to bunker. During entering the seaport she ran aground and was
seriously damaged. Part of the cargo had to be thrown overboard and the ship could not
continue her voyage to Baltimore. The charterers withheld the value of undelivered cargo
from the freight. Reardon demanded full payment m but other party claimed that the fact
that the vessel had added more than 200 miles to call at Constanza and that fact
constituted a deviation. It must be emphasized that in 1930s cheap oil was available in the
Romanian port of Constanza. Therefore Constanza became a customary refilling port for
ocean going vessels. It had been shown that 25 % of vessels sailing through Bosphorus
were calling at and bunkering at Constanza. Court held that not geographical direct route
had to be followed, but the usual route, and in that case it was usual for the oil burning
ships to call at Constanza. In this case custom of calling at Constanza decided that there
was no deviation. The existence of such custom must be universal and uniform though.6
Having in mind the Courts opinion rendered in Reardon case, The test of what is usual
and reasonable in a commercial sense may arise in very different circumstances and
must be decided whenever it arises by the application of sound business consideration
and by determining what is fair and reasonable in the interest of all concerned it should
be noted that the uniformity and universality of the custom can not be interpreted
absolutely and objectively. The application of aforementioned must be conducted in
respect of any given particular case and fact pattern.
It must be noted that deviation not necessarily means the deviation from the
geographical route. Delay in performing the contract of voyage may also constitute a
deviation.7 Such approach is fully justified. Reasoning by analogy one may argue that if
taking geographical route different than stipulated in contract or bill of lading constitutes
deviation performing the carriage contract in a different time frame should be treated as
such as well. The reason why duty not to deviate is an implied carriage contract term is
that deviation brings additional, unnecessary risk for the vessel and her cargo. The risk is

Reardon Smith Line Ltd v. Black Sea and Baltic Insurance Co., [1939] AC 562 (HL)
J.C.T. Chuah, Law of International Trade, 215, 2nd ed. (2001)
7
S. C. Boyd, A.S. Burrows, D.Foxton, Scrutton on Charterparties, 257, 20th ed. (1996)
6

International Commercial Contracts Paper. Carriers duty not to deviate

brought upon the ship not only when she deviates from the geographical voyage route but
when the voyage is delayed as well. Analogically as in the case of geographical route
deviation the test must be conducted whether the damage or loss would have taken place
if there was no deviation- delay. The justification for this reasoning is that delay prolongs
the risk of a voyage, for example taking another ship in tow had been held to be an
equivalent to deviation, since it must retard the progress of a towing vessel and thereby to
prolong the risk of a voyage8
The crucial characteristic of deviation is that it must be intentional. The
essence of deviation is a voluntary substitution of another voyage for a contract voyage9.
The deliberate act of deviation must be a part of ships owner or her officers.10
Consequently there will be no deviation in the situation where the vessel had sailed of the
course due to the masters illness, where the ship is blown off the course.11 The question
arises how the involuntariness of the deviation caused by an error should be treated.
Deviation caused by an error, resulting from negligence or even in cases of lack of
good, proper or reasonable sea practice should not be treated, as it was deliberate,
with all consequences.
Deviation constitutes breach of contract and results in the rise of the liability
of the carrier. The question arises whether it constitutes fundamental breach.
Traditionally deviation had been treated as such, the contract had been commonly said to
be terminated by the deviation, with no protection usually given to common carriers
stipulated.12 Most commonly deviation was treated as giving right to the party of carriage
contract to consider the breach a repudiation bringing the contract to an end and claim
damages.

The charterer may also choose to accept the deviation and continue the

contract and claim damages only. It must be emphasized though that in this latter case the
carriers right for freight will remain untouched.13

supra note 7, footnote 75

supra note 1
10
J.F.Wilson, 17
11
J.C.T. Chuah, 216
12
A.D. Hughes, Cases on Carriage of Goods by Sea, 90, 2nd edition (1994)
13
S. C. Boyd, A.S. Burrows, D.Foxton, Scrutton on Charterparties, 260, 20th ed. (1996)
9

International Commercial Contracts Paper. Carriers duty not to deviate

According to US doctrine unjustified deviation makes the carrier insurer of

the goods, under a breach of contract theory, as a wrongdoer in tort14, hence the liability
and the risk for loss or damage of goods passes on the carrier. One should ask himself a
question what is the moment of passage the risk and whether the risks passes back after
returning to the contractual or usual route. The first question seems to be prima facie
clear and one would agree that liability for the loss or damage of goods occurs from the
moment of going of course. The issue becomes more complicated though when there was
an involuntary deviation caused by an error resulting from mal practice or negligence.
For the sake of certainty and integrity it should be assumed that the liability and passage
of risk occurs also from the moment of going of course, not from the moment of error,
negligence or the act of bad practice taking place. It should be emphasized that
aforementioned circumstances do not give rise to the passage of risk, but deviation does.
The more complicated issue is the question of liability for the damages or the
loss of goods after returning to the contractual or usual route. One must examine the
casual link between deviation and the occurrence of the event causing damage or loss of
goods. If the event causing damage could have been avoided providing that there was no
delay caused by deviation there would be sufficient justification for the carriers liability.
From the other side when the event could not be prevented from or avoided even if the
voyage was continued, following the contractual or usual route.15 Another question that
arises is to what extend would the deviating carrier be liable. Aforementioned doctrine
that tells to treat the deviating carrier as if he was an insurer tends to favour the strict
approach and the extensive liability of the carrier. Would that liability be so extensive as
to cover the cases of force majeure? Though the liability should be extended, as the
insurer bears the extensive risk, such as perils of the sea, it should not be extended that
far to cover force majeure. Ivamy also points out that in case of unjustified deviation the
shipowner cannot rely on the exception clauses in the charter party and then is then only
entitled to the benefit of the exceptions available to a common carrier, e.g. act of God,
loss by the Queens Enemies, if he can prove that the loss would have occurred even if no

14

T.J.Schoenbaum, Admiralty and Maritime Law, 627, 3rd ed. (2001)

International Commercial Contracts Paper. Carriers duty not to deviate

deviation had taken place.16 Some authors go even further, claiming that unless he
proves that the damage or loss had been a result of an act of God or by the Kings
enemies or by inherent vice of the goods and the loss or damage must have had occurred
even if there was no deviation the carrier would be liable irrespectively the loss or
damage had arisen after the deviation had ceased, during the deviation or even before
deviation.17 The latter case is especially interesting. The example is loss covered by an
exemption in bill of lading, for example the sea perils and occurred before deviation had
taken place. The deviation is said to have displaced and destroyed the special contract
(exemption in bill of lading).18
Another effect of unjustifiable deviation is that the carrier cannot claim the
contractual rate of freight payable under charter-party. It may be entitled to a reasonable
sum if the goods are carried to a destination safely.19
In some circumstances deviation is permissible and does not give rise to
carriers liability. Traditionally Common Law allows deviation for purposes of saving
human life, to avoid danger to ship or cargo and when it is made necessary by some
default on the part of charterer.20
Deviation for saving human life is always justified and permitted. Saving life
at the sea is fundamental moral duty and should not be distressed by any threat of legal
liability for the possible damage to a ship or cargo. Saving human life should be
interpreted broadly and also should include deviation for communicating with a vessel in
distress. The impulsive desire to save human life when in peril is one of the most
beneficial instincts of the humanity, and nowhere more salutary in its results than in
bringing help to those who, exposed to destruction from the fury of winds and waves,
would perish without assistance.21 Common Law does not justify deviation for the sole
purpose of saving property. In the case Scaramanga & Co v. Stamp22 the steamship
Olympias, owned by defendants had sighed another ship (Arion) in distress. Arions
16
17
18
19
20
21
22

E.R.H. Ivamy, Carriage of Goods by Sea, 23, 13th ed. (1989)

S. C. Boyd, A.S. Burrows, D.Foxton, Scrutton on Charterparties, 259, 20th ed. (1996)
id. footnote 84
E.R.H. Ivamy, Carriage of Goods by Sea, 23, 13th ed. (1989)
J.F.Wilson, 18
Scaramanga & Co. v. Stamp, (1880) 5 CPD 295 CA
id.

International Commercial Contracts Paper. Carriers duty not to deviate

machinery had been broken down and the ship was in a very bad condition. The weather
and the sea conditions were fine and Olympias could have had taken the Arions crew
on board easily and save them. Instead the captain of Olympias decided to attempt to
salvage the ship in order to claim salvage remuneration. After having taken Arion a tow
Olympias had got ashore and both ship and cargo were lost. In this case Court had
confirmed permissibility of deviation for the purpose of saving human life and did not
justify deviation for saving property. In Scaramanga case it was clear that the crew could
have been saved without putting the salvage ship and her cargo to risk and danger. As
indicated above salvage operation and towing brought additional not necessary risk upon
Olympias. It not only prolonged risk of a voyage but as well introduced substantial,
significant risk in navigation and sailing. One should bear in mind that towing another
vessel changes the sailing conditions significantly and requires skills and experience from
the master and the crew. Court clearly distinguished deviation for saving human life from
saving property, where prior is protected and latter results with all the effects of
unjustified deviation. Court stated that if lives of the persons on board a disabled ship
can be saved without saving the ship, as by taking them off, deviation for the purpose of
saving the ship will carry with all the consequences of an unauthorized deviation.23 In
the situation when the only possible way to save human life would be salvage of the ship
such deviation would be justified, providing that the motive leading to deviation is saving
human life and the salvaging ships master and crew are acting in bona fide of saving
lives.24
The limitation of the liability in case of saving human life is high. The
deviation for saving human life would not involve forfeiture of insurance nor liability to
the owner of the goods.25
The deviation to avoid danger to the ship or cargo is also justified. It must be
emphasized, that it is not necessary that the danger should be common for ship and cargo.
It is enough that either ship or cargo would be in danger to justify deviation.26 One of the
main duties of the master is to ensure bringing the adventure to successful conclusion.
23

See supra note 21

id.
25
J.C.T. Chuah, 216
26
S. C. Boyd, A.S. Burrows, D.Foxton, Scrutton on Charterparties, 265, 20th ed. (1996)
24

International Commercial Contracts Paper. Carriers duty not to deviate

Protecting the ship and her cargo from undue risks would be a justified reason for taking
the ship off the contractual or usual course.27 The risks that may cause such deviation
include storms, icebergs, heavy fog, pirates and the fear of capture by hostile forces.28
The danger that justifies the deviation must be of reasonably permanent nature. In case
that deviation was reasonable the charterer cannot refuse full freight payment.
The other reason that justifies deviation is when the ship moors to the port for
necessary repairs when she suffered damage. It is unclear though whether in such
situation ship should be put for repairs into nearest port or to some other. Ivamy, favours
the first concept29, while Chuah supports the second concept: The liberty to take the ship
to port for repairs is not confined to using the nearest port; it is always question of fact
as to what is reasonable decision of the shipmaster.30 Chuah opinion seems to be more
adequate. The distance from he port should not be the sole consideration in such case.
Master should also take into consideration factors like quality of repairs in given ports,
costs, time of repairs and general condition of a vessel, and the nature of the damage.
After having examining those factors it may happen that some more distant port should
be more suitable in given situation.
The question arises whether deviation for repairs is justified in the situation
were repairs were necessary due to prior unseaworthiness of the vessel. The United States
Courts have held in the case The Louise31 that deviation was unjustified in the situation
when shipowner was aware of unseaworthiness before sailing away. On contrary English
Courts held that deviation for repairs, even caused by unseaworthiness is justified. House
of Lords held that justification of deviation lies in the necessity to avoid the danger, and
is not affected by the cause of that danger, therefore deviation for repairs, even caused by
initial unseaworthiness should be justified.32 It seems that the view the first view,
expressed by the American jurisprudence is more justified. It is hard to give account to
opinion justifying breaching one fundamental duty of a party to a contract, to avoid

27
28
29
30
31
32

See supra note 19, at 21

id
id.
J.C.T. Chuah, 217
The Louise [1945]AMC 363, J.F. Wilson, 19, footnote 62
J.F.Wilson, 19

International Commercial Contracts Paper. Carriers duty not to deviate

danger arising from breaching another fundamental duty. Supporters of the approach
represented by English Courts may argue that the charterer may always claim his
remedies on the grounds of carriers breach of duty to provide seaworthy ship. The
arguments for such approach would be certainty and integrity of the doctrine: the
deviation doctrine would be clear and free from exceptions; harmed party would still be
satisfied on the basis of seaworthiness. On the face of it such approach seems
satisfactory, but one must pay attention to the practical side of the problem, namely
question of the burden of proof. The advantage of restrictive deviation doctrine is
presumption that deviating carrier is to be held liable. If only it is proved that the
deviation actually took place, which is relatively easy to show the carrier is liable and
faces all consequences of unjustified deviation. The presumption may be overruled by
evidence by the carrier that he deviated to conduct necessary repairs.
Deviation made necessary by default by a charterer is also permitted. This is
fully justified. It may be in the situation when charterer had load on board some
dangerous goods without carriers consent or when charterer had breached his contractual
duty to load a full cargo. In the first case the carrier will be justified to deviate in order to
discharge those dangerous goods, in the latter situation he will be entitled to deviate to
load full cargo.33 One might wonder why in case of necessity of discharging dangerous
goods deviation is not permitted on the basis of avoiding the danger to the ship or cargo.
As emphasized above such danger must be of reasonable and permanent nature. Although
the second condition seems to be undoubted- dangerous goods are stored on board of the
vessel continuously and permanently, the fulfilment of the first condition, raises
questions. It must be noted that possible threat is not inevitable and reasonable enough.
Dangerous goods may or may not bring peril upon the vessel and other cargo; secondly
the mere fact of carrying dangerous goods is nothing unusual. Dangerous goods are
commonly carried every day practically on all seas. The wrongdoing is not in placing the
dangerous goods on board, but in doing that without consent and knowledge of the
carrier, therefore it is justified to distinguish grounds for justifying the deviation and give
right to deviate on the basis of default by a charterer.

33

id. 20

International Commercial Contracts Paper. Carriers duty not to deviate

It has become a common practice to include in the contract or bill of lading so

called liberty clauses. Justification of deviation stipulated expressly in the contract is
permitted on the general rule of freedom of contracting.

Such clauses give the master

right to deviate in certain situations. It must be emphasized that as any exceptions from
the rule liberty clauses should be interpreted narrowly. Deviation or liberty clauses are
normally drafted in favour of the shipowner and courts interpret them restrictively.34
Certainly too broad interpretation of liberty clauses cannot destroy the commercial object
of the contract. In the Leduc v. Ward35 case liberty clause permitted to call at any ports
an any order. Court stated that such clause was too wide. Basically it had the same effect
as if it was drafted any port in the world. Such construction was held to be too wide and
not consistent with the mercantile object of the contract.

The doctrine of commercial

object of the contract is very significant in interpretation of liberty clauses. It must be

noted that that is not the only test that have to be met in narrow interpretation of deviation
clauses. Equally important is reasonable purpose of deviation. The liberty could not
reasonably be intended to give the right to call at an intermediate to land or take on board
friends of the shipowner for the purposes of a pleasure trip36
It must be emphasized that liberty clauses, although interpreted narrowly and
restrictively are valid and enforceable. When carefully and precisely drafted liberty
clauses will have full effect37

34

J.F.Wilson, 21
Leduc v. Ward (1888) 20 Q.B.D 475, J.C.T Chuah, 220
36
J.C.T Chuah, 221
37
id.
35

International Commercial Contracts Paper. Carriers duty not to deviate

The Carriers duty not to deviate looks slightly different according to the
Hague-Visby Rules, introduced into the English law in The Carriage of Goods by Sea
Act and Hamburg Rules38, than in traditional common law. The most significant
difference is that Hague-Visby rules expressly permits deviation for purposes of saving
property. Art. IV(4) provides that Any deviation in saving or attempting to save life or
property at sea or any reasonable deviation shall not be deemed to be an infringement or
breach of these rules of contract of carriage and the carrier shall not be liable for any
loss or damage resulting therefrom. On the face of the problem one may notice how
wide this liberty is comparing to the common law rules.
Not only deviation for saving the property is allowed but also deviation in
attempt of doing that, which gives more flexible opportunities for the carriers to avoid
liability, since there would be enough for them that they had taken an attempt of saving
life or property.
As one continue to analyse the article of Hague-Visby Rules the decrease of
strictness is even more obvious. Permission to deviate for any reasonable purpose
(reasonable deviation) is striking. In practice this provision should not have as significant
effect as express permission for deviation with the purpose of saving property, since the
courts would rather be careful and conservative in interpreting this provision. What is
reasonable must be assessed in the light of every condition and every circumstance of the
case. The deviation must be reasonable not only to one party but to both.39 The
Reasonable Deviation will most probably be interpreted in some accordance with
traditional common law rules but permission to deviate for saving property materially
alters the situation.
Such provision threatens proper conduct of the carriage business. The main
purpose of carriers business is carriage of goods not the salvage operations. There is a
danger that carriers attracted by the salvage remuneration would engage too often in
salvage operations at the cost and risk of charterers. Therefore test for reasonable
deviation should also be applied in the cases of saving property.

38
39

UN Convention on Carriage of Goods by Sea 1978

J.C.T Chuah, 294

10

International Commercial Contracts Paper. Carriers duty not to deviate

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CHARTERPARTIES AND BILLS OF LADING, 20TH ED., LONDON 1996,

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INTERNATIONAL TRADE, 2ND

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SWEET &

MAXWELL 2001,
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GOODS

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SEA, 13TH

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11