Marine Deviation. Substance and Manner. Contemporaty marine insurance law overview

… because independently of any restraint upon the shipowner, arising from agreement on the subject, the ship may make as many intermediate rests and stages in the course of its voyage, (and in the case of coasting voyages, or voyages to places near home, it usually does so,) as the ordinary convenience of its employers and nature of its service-may require.
Max v Roberts (1810) 12 East 89 per Lord Ellenborough at p.95

Deviation under Marine Insurance Law

William S. Holdsworth, in his book "A history of English law" traced the first successful insurer’s defence on the ground of deviation back to year 1547 when the oldest known suit in Admiralty in case of Broke v Maynard took place. Same author names the common law case Green v Young (1702) 2 Salk. 444 as one of the earliest case law authorities concluding that deviation was fatal to the policy, but that for a loss occurring before the deviation the insured could recover.

But one of the most authoritative cases on marine deviation as well as one of the oldest is Lavabre v Wilson (1779) 1 Doug 284 case, in which the owner claimed money under insurance policy when his ship was lost being captured by privateer. The policy was issued for the voyage from:

…Port L’Orient to Pondicherry, Madras and China, and at and from thence back to the ship’s port, or ports of discharge in France, with 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.

And 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 fact the ship arrived to Pondicherry (port in the southern part of India) with great delay and instead of China sailed from there to Bengal, where further voyage to China was abandoned altogether and the ship returned back to Pondicherry again with considerable delay. The usual time in which the direct voyage between Pondicherry and Bengal was performed in that times, was six or seven clays, but I took for the ship about six weeks in going to Bengal, and two months for the way back to Pondicherry. Delay resulted from the fact that both going and returning, she either touched at, or lay off, Madras, Masulipatam, Visigapatam, and Yanon, and took in goods at all those places.

When sailed from Pondicherry back to France vessel was captured en route by privateer. The shipowner claimed firstly, that voyage to Bengal was a necessary departure from agreed route for safety reasons, secondly, that the time employed in going to Bengal and back could not alter the case, as the risk had not been thereby increased, the coasting voyage performed being free from all hazards and thirdly that a voyage superadded by necessity, i.e. deviation to Bengal, ought to be subject to the same liberty provisions as the voyage insured.

Lord Mansfield approaching the jury, stated that Bengal was certainly not within the words of the policy, but even if necessity was admitted to have been the sole motive for substituting the voyage to Bengal in the place of that to China, still the insured was under the duty to have pursued that voyage of necessity directly, in the shortest and most expeditious manner, and that the delay in going from Pondicherry to Bengal, and the repeated stops by touching at different places, and trading there, were deviations, and not within the protection which the supposed necessity afforded to the direct voyage.

His Lordship emphasised at p.291:

A deviation from necessity must be justified both as to substance and manner. Nothing more must be done than what the necessity requires. The true objection to a deviation is not increase of the risk. If that were so it would only be necessary to give an additional premium. It is that the party contracting has voluntarily substituted another voyage for that which has been insured. If the voyage to Bengal was unavoidable, where was the necessity to trade? All the ports touched at were out of the direct course, and six weeks and two months were consumed instead of six days. The justice of the case required a different decision.

This statement provides a rule to assess whether any particular departure from the voyage as described in the contract was or was not a deviation, by way of examination the said departure from two viewpoints, namely substance and manner, and strikes out change of risk as irrelevant attribute. Any new risk can be covered by additional premium agreed with the insurer, whereas the question is whether such departure was substantially justified and performed in a manner which considers interests of all parties concerned, but was not solely based on the shipowner’s intention to unilaterally stop performing an initial contract and instead pursue his own mercantile interests.

In Raine v Bell [1808] EngR 29; (1808) 9 East 195 Le Blanc J said that even in absence of express provision vessel can touch at a port which is allowed, and stay there for any reason which is allowable within the intent and meaning of the policy as far as no additional risk to the underwriters be incurred. Assumingly, ‘allowed port’ shall be both usual and necessary to call within reasons stipulated or implied in the policy. The learned judge, however, was more particular when he distinguished necessity from trading, i.e. from desire of the master to call at any port where he could find a promising or lucrative employment to his vessel:

…the reason of the express reservations in order to justify the delay in trading; the staying at a place for the very purpose of trading there…

…whether the deviation or delay arose from necessity or from the trading; and wherever the case was doubtful upon the evidence, [the court] would generally turn the verdict against the assured who would have to account for the delay or deviation.

Equally, delay or failure to proceed at once to port of loading in McAndrew v Adams (1834) 1 Bing NC 29 and alternative engagement on an intermediate voyage for the owner’s own purposes was held to be a deviation, concurring with the general principle stated in both Lavabre v Wilson (1779) 1 Doug 284 and Raine v Bell (1808) 9 East 195.

Existing custom of trade

It must be taken into account that short departures from direct route were usually justified by the custom of the trade and it was understood by the parties that the ship may make as many intermediate rests and stages in the course of its voyage, as the ordinary convenience of its employers and nature of its service may require. Accordingly there were generally very wide borders for the test of reasonability, and such cases as Lavabre v Wilson and Freeman v Taylor are good illustrations to this thesis.

Thus, it was settled law that whereas any new risk can be covered by additional premium agreed with the insurer, any departure from contracted voyage or delay in performance must be substantially justified and be done with consideration of interests of all parties concerned.

Analysis of case law preceding Balian v Joly, Victoria & Co. (1890) 6 TLR 345, shows that from legal and mercantile points of view, deviation was essentially an act of the shipowner by which he unilaterally stopped performing an original contract and began, in ignorance of the interests of another parties, to pursue his own mercantile interests in an alternative adventure. Small departures and short delays in ports for incidental trading were usually expressly allowed and cargoes of several (or many) cargo owners were commonly carried to different destinations located along the customary route. As a rule such incidental trading of the shipowner should have been substantially within tolerable limits acceptable by all cargo interests participating in the common marine adventure to fall short of deviation. When the balance of interests was beyond any doubt broken by the carrier so "it might be said to have put an end to the whole object the freighter had in view in chartering the ship", only then such departure or delay became a deviation which forfeited contractual rights of the carrier.

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