Historically, liability of the carrier for the loss or damage to the goods during sea transportation was equal to that of bailees for reward. In famous case of Coggs v Bernard Holt CJ classified carriers as falling under the fifth sort of bailment locatio operis faciendi:
…viz., a delivery to carry or otherwise manage, for a reward to be paid to the bailee, those cases are of two sorts; either a delivery to one that exercises a public employment, or a delivery to a private person. First, if it be to a person of the first sort, and he is to have a reward, be is bound to answer for the goods at all events. And this is the case of the common carrier, common hoyman, master of a ship, etc …
Some authors trace the principle that geographic deviation cause the offending sea carrier to lose the benefits of the contract to extends back to the eighteenth century case of Ellis v Turner (1800) 8 T.R. 531. But case report itself is silent on which grounds shipowners accepted liability for damage of the goods in excess of 10£ as they had stipulated in their notice. Contemporary textbooks regarded this decision as an example of misfeasance rather than deviation.
"The distinction between negligence and misfeasance, seems to be this, that the former takes place in the course of performing the contract, the latter consists in an act done in direct contravention of it, by which its performance is prevented. Of this last description was the case of Ellis v Turner. A vessel belonging to the defendants, and plying from Hull to Gainsborough, took on board some goods of the plaintiffs to be delivered at Stockwith. It went safe as far as Stockwith, and there delivered part of the cargo, but not the goods in question, and in proceeding on her voyage, sunk, before her arrival at Gainsborough. The defendants had published a notice, protecting themselves from the want of care in the master or crew; they were, notwithstanding, made accountable for this misfeasance of their servant the master of the vessel, in not delivering the goods at Stockwith in safety, when he might have done so."
A treatise on the liabilities and rights of common carriers, J.F. Jones, 1827, at pp.28-29.
Professor M. Dockray in his comprehensive work "Deviation: a doctrine all at sea?" points out to some older cases like Betsworth v Clerke (1679) Fin H 435, Shubrick v Salmond (1765) 3 Burr 1637 and Holland v Harecourt (1792) 1 Bulst 176, where parties made express agreement as to route.
There are also some sixteenth and eighteenth centuries authorities on insurance policies mentioned by William S. Holdsworth, in his book "A history of English law". (Read more: Wrongful act in operation and force and Substance and manner)
On the other hand shipowner’s duties under his contract of affreightment were governed by the law of obligation. In the sixteenth century and up to the middle of the nineteenth century law of contracts was by no means clear on the question how a bargain was to be carried to fulfilment, because the parties would not usually specify the precise steps by which their exchange of promises was to be effected, and it was left to the courts to work out the order and manner of the parties’ performance to each other. Mutual promises were considered independent unless containing express conditions which in practical terms led to situation when, for example, the charterer pleading damages was to pay freight first and only afterwards could satisfy himself with a remedy for non-performance.
Thirdly, almost all case law on deviation or unreasonable delay was related with legal disputes on policies of marine insurance. In those cases usually either ship or cargo or both were lost during sea passage and subsequent claims were defended by the insurers on the footing that the voyage stated in the policy was in fact never performed because of deviation which was not justified by necessity or voluntarily delay was of such extent that it avoid policy. Underlying legal principle formed in this branch of law postulated that in case of loss of ship and/or cargo a fact of deviation, unless caused by necessity, insurance policy became void because the master pursued different voyage from that which was specified in policy with the different risk attaches, which was never insured by the underwriter.
The reason upon which a deviation discharges the insurer, is not that the risk is thereby increased, but because the insured has, without necessity, substituted another voyage for that which was insured, and thereby varied the risk which the underwriter took upon himself.
Per Tindal CJ in Mount v Larkins (1831) 8 Bing 108 at p. 122
Finally, from technical and geographical point of view it should be remembered that until invention of steam engines there actually was very seldom a direct route between two ports for a sail ship, since sail ship is able to pursue a direct course only in case of stable favourable wind, otherwise she has to tack, and sometimes days and weeks against unfavourable winds, which meant series of sideways movements rather than in a straight line. Another point to remember is that on some trade routes, ships had to make substantial departures from the course to replenish their stock of drinking water and stores. Therefore, characteristic "direct" was almost invariably amended in contracts with more accurate adjective "customary", when parties stipulated an agreed route. Lastly, calling and trading at different ports and places within and sometimes quite outside of direct and customary route, was actually very often expressly allowed.
In Lavabre v Wilson (1779) 1 Doug 284, for example, it was provided in policy of insurance that the ship has a liberty "to touch in the outward or homeward-bound voyage, at the Isles of France and Bourbon, and at all or any other place or places what or wheresoever." Moreover an additional clause dealt with deviation matter specifically in the following words:
…it shall be lawful for the said ship, in this voyage, to proceed and sail to, and touch and sky at any ports or places whatsoever, as well on this side, as on the other side of the Cape of Good Hope, without being deemed a deviation.
In another contemporary case Bize v Fletcher the voyage insured was described as "…and to all or any ports and places where, and whatsoever, in the East-Indies, China, Persia, or, elsewhere, beyond the Cape of Good Hope, from place to place, and during the ship’s shy, and trade backwards arid forwards, at all ports arid places, arid until her safe arrival back at her last port of discharge in France."
The courts therefore were often struggling with dilemma how without disturbing the right of the parties to agree upon any provision they like, to curtail sometimes ridiculously wide liberties one side was able to secure in the contract.
In years of dominance of natural law and philosophy of laissez-faire the carrier was able to protect his interests by broadly drafted clauses, with very wide range of options regarding to places where it was lawful for ship to call to. The cargo interests, on the other hand, were resolute in restricting the meaning of such provisions within the following limits:
a) description of voyage
b) justification of departure from the direct route
c) the justice of the case
This clash of interest crystallised two main characteristics of marine deviation:
1. Voluntarily breach of the contract by the shipowner when he without justification unilaterally departs from the letter of contract, either in the sense of geographical deviation or delay in performance;
2. Such deviation or delay must be unreasonable and unnecessary to an extent as to utterly contradict to business interests of the cargo owners and all other parties concerned.
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