Marine Deviation
Distinctive Features of the Marine Deviation
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There are some distinctive features of the marine deviation enumerated below. They represent a chain of consecutive actions necessarily to happen for unjustified departure from contracted voyage to take place:
1. There must be unequivocal decision and accord between the shipowner and the master to depart from contracted voyage disregarding the interests of the cargo owners and proceed on the new voyage to new destination.
2. There must be in fact a choice of several routes before the master. If the master for safety reasons, for example, has no other option but to pursue only one course there will be no deviation, because such departure will be justified.
3. There must in fact be geographical departure from the voyage described in the contract. If the master contrary to the shipowners’ orders delivers the goods to destination as per agreed contract there will be no deviation, even in spite of unequivocal intentions and orders from the owners.
When by the ordinary law of contract, it is enough if one party evinces an intention to be no longer bound by the contract, for another party to accept the repudiation and rescind, then to commit the breach by deviation it is not enough even declaration from the part of shipowners that they will deviate from the contracted route, but it is necessary for the master and the ship to make physical geographical departure from the contracted route to constitute such breach.
Here lies fundamental principle of deviation as an adventure which has been changed, when a contract entered into on the basis of the original adventure becomes inapplicable to new adventure. And although theoretically their Lordships in Hain Steamship Company Ltd v Tate & Lyle treated the act of deviation correctly, but I’m bound to say that they misapprehend this act in its practical and legal aspect.
Deviation cannot be waived by the cargo interests, albeit in pure hypothetical sense. The shipowner, acting through the master, direct the vessel to another destination, outside of contracted route, in pursuance of his own practical or commercial interests. Then for what reason shall the cargo interests elect to waive the deviation? In simplified form this question can be rephrased like this: if you have bought a ticket on the flight from Los Angeles to Hawaii why should you agree to fly to Alaska instead and not insist on your booked flight? If we forget about geographical aspect of marine deviation and answer this question from theoretical standpoint of the contract law the answer will be very simple: the aggrieved party has a right to elect, therefore hypothetically the aggrieved party may consent to keep the contract alive and same hypothetically someone might agree to fly to Alaska instead of Hawaii. If we forget about geographical aspect of marine deviation and answer this question from theoretical standpoint of the contract law, the answer will be rather simple: since the aggrieved party has a right to elect, i.e. hypothetically, the aggrieved party may consent to keep the contract alive and, same hypothetically, someone might agree to fly to Alaska instead of Hawaii. But all the law of marine deviation throughout the long line of cases fought against an injustice reflected in the fact that deviation serves the interests of the carrier only, leaving it absolutely to the shipowner himself to do what he will with the cargo. And with regard to this proposition Lord Esher M.R. said in Leduc & Co v Ward (1888) 20 QBD 475 at p.481, that business could not be carried on upon these terms.
Deviation therefore is not a departure under mistake, as in the Hain Steamship case, where no really voluntarily choice between an option to pursue contracted voyage and an option to sail on another, different voyage was ever made, but a deliberate departure disregarding interests of the cargo owners. Strong support to conclusion that deviation takes place only where voluntary and deliberate action of the owner necessarily combined with disregard to position of cargo interests can be derived from decision of MacKinnon J. in Wallems Rederij A/S v WH Muller & Co Batavia (The Storviken) [1927] 2 KB 99, [1927] All ER Rep 369. In that case the charterer in their defence to the owner’s deadfreight claim, submitted that the owners’ action in loading 1,000 tons of cargo at Alexandria to fill up the space that was left vacant by the charterers at load port, involved a delay of the ship for the period of loading; that that delay constituted a deviation. The learned judge at p.372 stated that there is no deviation when a departure in question was impliedly authorised because "such an action is for the benefit of the charterer [the cargo owner in that case], because it goes to mitigate the amount of damage that he otherwise would be responsible for by his failure to ship the full cargo."
A factor of deliberate and voluntarily choice between two or more options was never examined in marine deviation authorities and was only mentioned in passing in Rio Tinto v Seed Shipping (1926) 24 LIL Rep 316. It may looks strange since this factor is a border line between the deviation and the contracted voyage. But it has its explanation. In all cases before Hain Steamship the owners deviated from contracted voyage pursuing their own interests only and without (or with very limited) regard to the interests of the cargo owners, who’s goods were affected by such deviation. For example in Glynn & Co v Margetson [1891-94] All ER Rep 693 the contract of carriage described voyage as between Malaga and Liverpool, but vessel on departure from Malaga went in opposite from Liverpool direction, to Burriana. The carrier voluntarily and deliberately chose another and different voyage from that one contracted, but argued that this voyage was still within ‘liberty to deviate’ provision.
Thus, in all cases on marine deviation argued until the Hain Steamship, as a common practice, there were several consignments under different bills of lading with either loading or discharging ports spread over wide range of geographical locations. To call to all such ports for loading, discharging, bunkering, taking stores or passengers and be within contracts of carriage for each and all consignments at the same time the owners needed protection of liberty clauses. Therefore neither voluntarily departure nor the fact that this departure was done in the interests of the shipowners only was ever questioned since it was always the case, but the question was whether such departure was allowed by the contract. Only in Phelps, James & Co. v Hill [1891] 1 QB 605 where the master made a choice between 2 ports of refugee, it was questioned whether such departure was in interests of both parties to the contract. Lindley LJ when commenting on master’s authority to make a decision between several options stated the following necessary qualifications to such decision: that it shall be made by competent and knowledgeable person and bona fide in interests of all concerned. The similar test was later expressed by Lord Atkin in Foscolo, Mango & Co. v Stag Line (1931) 41 Ll.L.Rep. 16, at p.171:
The true test seems to be, what departure from the contract voyage might a prudent person controlling the voyage at the time make and maintain, having in mind all the relevant circumstances existing at the time, including the terms of the contract and the interests of all parties concerned, but without obligation to consider the interests of any one as conclusive?
These statement read together both contemplate first that there must be a factor of choice before the shipowner or his master and secondly when the choice made and another voyage is being pursued the question whether there is a deviation shall be decided taking into account the interests of all parties concerned, but without obligation to consider the interests of any one as conclusive. Coming back to the Hain case it is impossible to say that the master made a choice between the route to Queenstown and one to San Pedro and it is also impossible to say that the owners knowingly disregarded the interests of the charterers or that the maser pursued the course to Queenstown knowingly in disregard to the interests of the charterers.
Detailed analysis of the doctrine of fundamental breach is outside of the scope of this work. And actually it is very difficult to add something new to the saga of raise and fall of this doctrine as it was done by Lord Wilberforce in Photo Production Ltd v Securicor Transport Ltd [1980] 1 All ER 556 and Lord Denning MR in George Mitchell (Chesterhall) Ltd v Finney Lock Seedy Ltd [1983] 1 All ER 108 at 113-114. The doctrine’s life in contract law body begun from one particular case with very peculiar facts and, I think, its application even in that uncharacteristic for marine deviation case was at the very least artificial if not incorrect.
Finally, turning back to Lord Mansfield’s ‘justice of the case’ and to ‘problems, productive of injustice’ as this matter has been later expressed by Lord Wilberforce, it is very difficult to find any ground either in Hain Steamship or in other marine deviation cases which would give reason for application of the doctrine of fundamental breach. In Hain Steamship case was no deviation, as it was understood in all previous case law on the matter, and accordingly no necessity of such artificial intervention was ever required – if no deviation the cargo interests have had to contribute to the general average in same way as the House held them to do. And if we look at the decisions of the courts in deviation cases preceding Hain Steamship we shall see that such instrument as the doctrine of fundamental breach was an unnecessary tool and therefore actually never needed to ensure the justice of the case, when ordinary rules of construction were sufficient to reach adequate decision.
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