Marine Deviation. Mutual Promises. Contemporaty contract law overview

The distinction is very clear, where mutual covenants go to the whole of the consideration on both sides, they are mutual conditions, the one precedent to the other. But where they go only to a part, where a breach may be paid for in damages, there the defendant has a remedy on his covenant, and shall not plead it as a condition precedent. If this plea were to be allowed, any one negro not being the property of the plaintiff would bar the action.
Boone v Eyre (1777) 1 H. Bl. 273n.; 2 W. Bl. 1313 at 1314

Dependent and Independent Promises

Law of marine deviation being an organic part of English law of contract was equally affected by developments of the doctrine of dependency and independency of promises. The general rule established by the sixteenth century was that mutual covenants were independent unless express words of condition made one covenanted performance dependent upon the other. It suffices for the purpose of this article to mention only that when mutual promises were considered independent, they generally gave to either party the right to damages only in case of non-performance of another side; and when mutual covenants went to the whole consideration, they were treated as mutual conditions and breach of such condition precedent gave a right to the injured party consider himself as no longer bound by the terms of contract.

One example of condition precedent is implied warranty in contracts of insurance that the vessel shall be seaworthy. Seaworthiness of the vessel is a thing on which performance of the insurer depends, as Lawrence J explained in Christie v Secretan (1799) 8 TR 192, at p.198:

The consideration of an insurance is paid, in order that the owner of a ship which is capable of performing her voyage may be indemnified against certain contingencies; and it supposes the possibility of the underwriter gaining the premium; but if the ship be incapable of performing her voyage, there is no possibility of the underwriter’s gaining the premium, and if the consideration fails, the obligation fails.

Another example of condition precedent from the law of marine insurance is the rule that, insured enjoys the protection of the policy, only as long as he strictly pursues customary and usual course of the voyage insured. In this case reciprocal condition not to vary risk in any degree, even though it be not increased, by voluntary and unnecessary departure from the prescribed course of the voyage is one which goes to the whole consideration and on which alone the underwriter engaged to be liable.

In simple contracts of affreightment dated beginning of the nineteenth century we can usually meet an express warranty as to seaworthiness, which was in effect of equal force with implied one in insurance contract: … in and during the voyage aforesaid, shall be tight, staunch and strong, and sufficiently tackled and apparelled with all things necessary for such a vessel and voyage … and charterer’s reciprocal promise to pay "for the freight or hire of the said" vessel.

However, unlike insurance contracts, in contracts of affreightment primary charterer’s obligation to pay freight was not considered as promise dependent on the owner’s compliance with implied duty not to deviate. In Cole v Shallet (1797) 3 Lev 41 a master covenanted to sail with the first wind to Barcelona and return to London, carrying goods for the defendant. In an action for freight, the defendant pleaded that the ship did not return directly to London, but went to Alicante and Tangier, and made divers deviations, by which the goods were spoiled. The court et per totam curiam gave judgement for the carrier that he entitled to be paid full freight and "each party is by his action to recover against the other the certain damage he sustained."

Explanation of such rule was that when the owner’s breach did not preclude the charterer from making any use of the vessel, and notwithstanding the owner’s neglect, the charterer’s covenant is to be considered as going to a part only; the consideration had not wholly failed; and the covenant could not be looked upon as having raised a condition precedent, but merely gives the charterer a right to such damages as they can prove they have sustained from this neglect.

Similarly in Hall v Cazenove (1804) 4 East 477 Lawrence J stated that the charterparty is an instance of mutual covenants rather than a condition precedent because its substance is that the ship shall go to [port of destination] on freight and return again.

In Bornmann v Tooke [1811] Camp 376 it was held that the carrier’s promise to sail directly from Riga to Portsmouth was not a condition precedent and that deviation could not be given as a bar for action. Lord Ellenborough said at p.378:

To hold that any short delay in setting sail or trifling departure from the direct course of the voyage would entirely destroy the plaintiff’s right to be remunerated for transporting the cargo, would indeed be going inter apices facti.

Neither warranty nor condition

Breach of contract by deviation, therefore was treated, speaking in modern language, as intermediate term – neither warranty nor condition, but always depending on extent of departure or gravity and reasonableness of delay. 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. Another support to this thesis one can find in decision in Freeman v Taylor [1831] EngR 921; (1831) 8 Bing 124, where the owner’s vessel "Edward Lombe" arrived at the Cape, and might have proceeded on his voyage to Bombay in two days, but instead took the cattle for the Mauritius on his own account and arrived at Bombay six weeks later. In the meantime several ships had arrived at Bombay which left England subsequently to the "Edward Lombe" and the cargo owner’s agents refused to procure a cargo of cotton to freight the "Edward Lombe" back. Shipowner claimed freight and alleged that the engagement to sail from the Cape with all reasonable speed was not a condition precedent, but an independent covenant, for the breach of which the cargo owner might be entitled to sue; it did not go to the whole of the consideration for the owner’s contract. The Chief Justice directed jury in a way that the freighter’s compensation for any ordinary deviation lays in his action against the owner to recover damages, for such a deviation cannot put an end to the contract. However be the deviation so long and unreasonable that it might be said to have put an end to the whole object the freighter had in view in chartering the ship, in that case the contract might be considered at an end. The jury found for the cargo owner and it was held that the deviation was of such a nature and description as to deprive the freighter of the benefits of the contract in which he had entered.

Therefore a general tenor of cases decided by the first half of the nineteenth century unequivocally shows that deviation or delay were usually treated as breaches which give right to cross-action for damages only, unless such delay or departure from customary route were of "unusual" or unreasonably prolonged nature.

This status of law was evidently dictated by the custom of trade existing at that time, which, unless expressly stated otherwise, generally allowed the shipowner or master to call at any port which it was usual to call when on the route to destination. 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.

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