Marine Deviation
Historical Background
Having commenced his voyage, the master must proceed to the place of destination without delay, and without stopping at any intermediate port, or deviating from the straight and shortest course, unless such stopping or deviation be necessary to repair the ship from the effects of accident or tempest, or to avoid enemies or pirates, by whom he has good reason to suspect that he shall be attacked, if he proceeds, in the ordinary track, and whom he has good reason to hope that he may escape by delay or deviation j or unless the ship sail to the places resorted to in long voyages for a supply of water or provisions by common and established usage.
Abbot’s Law of Merchant Ships and Seamen,3rd edt. 1810, page 239.
The law of marine deviation originated from disputes on insurance policies when 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.
Thus in case of loss of ship a fact of deviation, unless caused by necessity, made insurance policy void because the master pursued different voyage from that which was specified in policy. For this another voyage the different risk attaches, which was never insured by the underwriter.
In case of loss of goods, deviation brought about strict liability of common carrier or an ordinary bailee who under common law is in the nature of an insurer of the goods when in his custody. (Read more on Common Carriers) By the beginning of the nineteenth century liability of common carriers crystallised into one of an absolute duty to deliver the goods he undertook to carry at all events: the law charges this person, whose trade is to carry goods, against all events but the acts of God and of the enemies of the King and even these defences were not available to the carrier if the loss or damage occasioned by his negligence. Such harshness was dictated by requirements of public policy, and can be explained by the fact that two hundred years ago precise reasons and circumstances which led to loss or damage to the cargo were generally impossible to unravel.
As early as in 1741 Lee CJ defined deviation in Clayton v Simmonds (1741) 1 Burr. 343 in the following words:
…if a ship puts into a port, not usual, or stays au unusual time, it is deviation.
This definition was evidently dictated by the custom of trade existing at that time, which generally allowed the shipowner or master to call at any port which it was usual to call when on the route to destination stated in contract. Such usual port must not be necessarily on the way to the ultimate destination but it should be a place where it was customarily to take water, provision, etc. at the very least or which was usual for ships on a particular trade to touch. It could also be a port where it was necessary to call for safety to avoid some imminent danger or to undertake urgent repairs. Usual time was the time which was usually necessary to spend for the purpose of said call, but no more.
Notion of necessity was not clearly articulated in definition of Lee CJ but obvious meaning of his words is that port or place which the owner called at for reasons irrelevant to mutual adventure and which it was not necessary to call on usual trading pattern or for safety reasons was ‘not usual’ and if the time spent for the purpose of call was unnecessarily long, it was an ‘unusual’ time.
Deviation, as a departure from the direct or customary route, often meant also an unreasonable delay in performance of contracted voyage which deprives the merchant of the benefit of the contract, but even without geographical deviation any unreasonable delay in the course of the voyage was itself a deviation because it places underwriter in a different position and alters the risk of the insurer. Reasonability of delay is always a question of fact.
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