Marine Deviation. Wrongful act in operation and force. Last updated 12-Aug-2014

… the law presumes against the carrier, unless …
Forward v Pittard, (1785) 1 T. R. 27, per Lord Mansfield at p.33

The law charges …

Language of Coggs v Bernard (1703) 2 Ld Raym 909 that "the law charges the person thus intrusted to carry goods as against all events but acts of God and the enemies of the king" extended liability of the carrier to such limit that even "if an irresistible multitude of people should rob him, nevertheless he is chargeable". Decision was explained to be "a politic establishment" to prevent the carrier from "combining with thieves, &c, and yet doing it in such a clandestine manner as would not be possible to be discovered". Lord Mansfield in Forward v Pittard (1785) 1 Term Rep 27 underlined necessity of the rule because it was often impossible for the injured party to unravel circumstances which accompanied the loss, and concluded (at p.33) that at "the common law; a carrier is in the nature of an insurer".

When the accident was occasioned by the act of God the carrier would not have been excused if his temerity or negligence had involved him in it. In Abbot’s Law of Merchant Ships and Seamen, 1810, at p.242 we can find the following view on the subject:

… the rule laid down by Roccus, who says, if mice eat the cargo, and thereby occasion no small injury to the merchant, the master must make good the loss, because he is guilty of a fault. Yet if he had cats on board his ship, he shall be excused. This rule and the exception to it, although bearing somewhat of a ludicrous air, furnish a good illustration of the general principle, by which the master and owners are held responsible for every injury, that might have been prevented by human foresight or care.

In Jone’s Law of Common Carriers published in 1827, liabilities of common carriers were summarised in the following words (at p.9):

By the law of England, common carriers are made responsible for every loss, not occasioned by the enemies of the king or by the act of God; that is, by such an act as could not happen from the intervention of man, as storms, lightnings, and tempests. Subject to these two exceptions, they stand in the situation of insurers of the goods.

The author furthermore distinguished this liability from one of the private carriers, which are only liable for the omission of due diligence. This position of law was extended to cases when "injury" was caused by act of noncompliance with implied duty not to deviate in Davis v Garrett (1830) 6 Bing 716.

Davis v Garrett

In that case the barge "Safety" deviated from the usual and customary passage from Bewly Cliff to the Regent’s Canal, and while deviating the barge was exposed to and "assailed by a great storm" and the barge itself and the cargo of lime was totally lost. Barge owner, when sued for the loss by the cargo owner, argued that since there was not an express undertaking to carry the lime by the direct course, an authority of Max v Roberts (1810) 12 East 89, is enough to permit the master of the barge to call at places somewhat out of the direct course, for the convenience of his general business. Secondly, in reply to another cargo owner’s contention that due to perishable characteristic of the lime, the deviation was a breach of implied duty to carry the goods in the usual and direct course without unnecessary delay, the defendant answered that the only undertaking that can fairly be implied on their part, was to convey the goods carefully and in reasonable time.

Finally it was strongly argued by the defending owner of the barge that the deviation was not a cause of the loss of the cargo of lime sufficiently proximate to entitle the cargo owner to recover, inasmuch as the loss might have been occasioned by the same tempest if the barge bad proceeded in her direct course.

Unfortunately for the owner, it was found on the evidence that the master of the barge had deviated from the usual and customary course of the voyage mentioned in the declaration without any justifiable cause. Tindal CJ in his answer to the argument on proximity critically noted that it is in the nature of any sea adventure that there is almost always a chance for the ship and the cargo to be lost due to excepted perils whether she was pursuing her right and ordinary voyage or not.

But the main source of carrier’s liability was emphatically held by the Chief Justice to be flowed from the fact that a loss from sea peril occurred when breach of the master’s duty not to deviate was in operation (at p.723):

… no wrong-doer can be allowed to apportion or qualify his own wrong; and that as a loss has actually happened whilst his wrongful act was in operation and force, and which is attributable to his wrongful act, he cannot set up as an answer to the action the bare possibility of a loss, if his wrongful act had never been done. It might admit of a different construction if he could shew, not only that the same loss might have happened, but that it must have happened if the act complained of had not been done; but there is no evidence to that extent in the present case.

Duty to proceed without unnecessary deviation in the usual and customary course was distinguished from one to carry the goods directly to the destination and was held to be implied by law.

This statement is notable for several reasons. First, it follows the rule of Forward v Pittard that carrier is in the nature of an insurer and his liability was almost absolute when his own negligence was an operative cause of the loss. Secondly, it positively connects and attributes damage or loss caused to operating wrongful act of the contract breaker. The learned judge unequivocally enunciated concurrency of the damage and the wrongful act and strong dependence the former from the latter. Finally, in Davis v Garrett the court for the first time pronounced existence of implied duty not to deviate in contracts of sea carriage. It is noteworthy that rationale applied by Tindal CJ is clearly distinguishable from cases on insurance policies, where it was immaterial whether loss following deviation was caused by excepted perils or not and whether it was attributable to the loss or not.

The contract of carriage cease to exist from the moment of deviation?

It was later suggested that reasoning of Tindal CJ in Davis v Garrett would equally make the shipowner liable for loss happening after the deviation is over, in sense that no protection is available to the carrier under the contract of carriage since it cease to exist from the moment of deviation and henceforth. Decisions in Balian & Sons v Joly, Victoria & Co Ltd (1890) 6 TLR 345 and Joseph Thorley Ltd v Orchis SS Co Ltd [1907] 1 KB 660 are clear illustrations of this far reaching assumption.

This view is, however, hardly sustainable. First of all the words staying that "wrongful act was in operation and force, and which is attributable to … wrongful act" are very clear to give them a wider meaning and suggest that it would equally apply to any damage happened before or after deviation. It bears no even vague allusion to possible termination of contract by deviation. Secondly, one to recall the words with which Tindal CJ approached the jury one year later in Freeman v Taylor [1831] EngR 921; (1831) 8 Bing 124, that:

… inasmuch as the freighter might bring his action against the owner, and recover damages for any ordinary deviation, he could not, for such a deviation, put an end to the contract: but if the deviation was so long and unreasonable that, in the ordinary course of mercantile concerns, 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.

It leaves little doubt that in view of the Lord Chief Justice a mere fact of deviation was in itself insufficient to bring the contract to an end, and it was actually an action for damages under contract in Davis v Garrett which the learned judge allowed. This view concurs with case law preceded Davis v Garrett, as an example can be taken the following dictum of Lord Ellenborough in Bornmann v Tooke [1811] Camp 376 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.

Ratio decidendi of Davis v Garrett is that unjustified deviation is a breach of implied duty imposed on the carrier by law to pursue a usual or customary and that if the goods were lost or damaged when such wrongful act was in operation, then a cargo owner could recover the damages thus incurred without proving that the deviation itself caused the loss.

In Nugent v Smith (1876), 1 C. P. D. 423 this principle was restated by Cockburn, C. J. in the following words:

…the carrier is bound to do his utmost to protect goods committed to his charge from loss or damage, and if he fails therein he becomes liable from the nature of his contract. … If by his default in omitting to take the necessary care loss or damage ensues, he remains responsible, though the so-called act of God may have been the immediate cause of the mischief.

Davis v Garrett rule was followed in Scaramanga & Co. v Stamp (1880) CA 295 and applied in Royal Exchange Shipping Co v Dixon (1886) 12 App Cas 11 and Lilley v Doubleday (1881) 7 QBD 510. And in all these instances loss occurred while wrongful act was in operation. In James Morrison & Co Ltd v Shaw, Savill and Albion Co Ltd [1916] 2 KB 783, the First World War case, where ship was torpedoed and sunk while deviating from her contracted voyage, Phillimore LJ said at p.800:

As the accident occurred at the time and place when it did, the ship being then on her deviating course, the shipowner is responsible unless he can show that the loss or damage would have occurred if she had been on her proper course for London.

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