catchwords

Shipping – Deviation – Contract of Carriage; Act of God, Fire and Sea Perils excepted – Whether Sea Perils protection is available for the carrier in breach of duty not to deviate.

this page was last time updated on: 23-Oct-2012

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Cases referring to this case:

Grill v General Iron Screw Collier Co (1866) LR 1 CP 600

Scaramanga v Stamp (1880) 5 CPD 295


Lilley v Doubleday (1881) 7 QBD 510

Royal Exchange Shipping Co v Dixon (1886) 12 App Cas 11


James Morrison & Co Ltd v Shaw, Savill and Albion Co Ltd [1916-17] All ER Rep 1068; [1916] 2 KB 783


Davis v Garrett (1830) 6 Bing 716


The defendant’s barge called ‘Safety’ was to deliver cargo of lime from Bewly Cliff in the county of Kent, to the Regent’s Canal in the county of Middlesex, the act of Cod, the king’s enemies, fire, and all and every other dangers and accidents of the seas, rivers, and navigation, of what nature or kind soever excepted. Upon departure the master of the barge instead of pursuing direct and shortest route deviated to the East Swale and to the Whitstable Bay and delayed there for 24 hours. And aferwards, in consequence of violent and tempestuous weather, the sea communicated with the lime which thereby became heated, aud the barge caught fire; and the master was compelled, for the preservation of himself and the crew, to run the barge on shore, where both the lime and the barge were entirely lost.

At the trial the plaintiff claimed that the master had deviated from the usual and custornary course of the voyage mentioned in the contract without any justifiable cause and while deviating the barge and her cargo was lost. Tindal CJ gave verdict for the plaintiff.

The defendant then obtained rule nisi for a new trial contending that the deviation by the master of the barge was not a cause of the loss of the lime sufficiantly proximate to entitle the plaintiff to recover, inasmuch as the loss might have been occasioned by the same tempest if the barge had proceeded in her direct course; and, secondly, that the declaration contained no allegation of any undertaking on the part of the defendant to carry the lime directly from Bewly Cliff to the Regent’s Canal.


Tindal CJ at p.722:

There are two points for the determination of the Court upon this rule; first, whether the damage sustained by the Plaintiff was so proximate to the wrongful act of the Defendant as to form the subject of an action; and, secondly, whether the declaration is sufficient to support the judgment of the Court for the Plaintiff.

As to the first point, it appeared upon the evidence that the master of the Defendant’s barge had deviated from the usual and customary course of the voyage mentioned in the declaration without any justifiable cause; and that afterwards, and whilst such barge was out of her course, in consequence of stormy and tempestuous weather, the sea communicated with the lime, which thereby became heated, and the barge caught fire, and the master was compelled for the preservation of himself and the crew to run the barge on shore, where both the lime and the barge were entirely lost.

Now the first objection on the part of the Defendant is not rested, as indeed it could not be rested, on the

p.723

particular circumstances which accompanied the destruction of the barge; for it is obvious, that the legal consequences must be the same, whether the loss was immediately, by the sinking of the barge at once by a heavy sea, when she was out of her direct and usual course, or whether it happened at the same place, not in consequence of an immediate death’s wound, but by a connected chain of causes producing the same ultimate event. It is only a variation in the precise mode by which the vessel was destroyed, which variation will necessarily occur in each individual case.

But the objection taken is, that there is no natural or necessary connection between the wrong of the master in taking the barge out of its proper course, and the loss itself; for that the same loss might have been occasioned by the very same tempest, if the barge had proceeded in her direct course.

But if this argument were to prevail, the deviation of the master, which is undoubtedly a ground of action against the owner, would never, or only under very peculiar circumstances, entitle the Plaintiff to recover. For if a ship is captured in the course of deviation, no one can be certain that she might not have been captured if in her proper course. And yet, in Parker v. James (4 Campb. 112), where the ship was captured whilst in the act of deviation, no such ground of defence was even suggested. Or, again, if the ship strikes against a rock, or perishes by storm in the one course, no one can predicate that she might not equally have struck upon another rook, or met with the same or another storm, if pursuing her right and ordinary voyage. The same answer might be attempted to an action against a defendant who had, by mistake, forwarded a parcel by the wrong conveyance, and a loss had thereby

p.724

ensued; and yet the Defendant in that case would undoubtedly be liable.

But we think the real answer to the objection is, that 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. Upon the objection taken in arrest of judgment, the Defendant relies on the authority of the case of Max v. Roberts. The first ground of objection upon which the judgment for the Defendant in that case was affirmed is entirely removed in the present case. For in this declaration it is distinctly alleged, that the Defendant had and received the lime in and on hoard of his barge to, be by him carried and conveyed on the voyage in question.

As to the second objection mentioned by the learned Lord, in giving the judgment in that case, viz. that there is no allegation in the declaration that there was an undertaking to carry directly to Waterford, it is to be observed, that this is mentioned as an additional ground for the judgment of the Court, after one, in which it may fairly be inferred from the language of the Chief Justice that all the Judges had agreed; and which first objection appears to us amply sufficient to support the judgment of the Court. We cannot, therefore, give to that second reason the same weight as if it were the only ground of the judgment of the Court. And at all events, we think there is a distinction between the

p.725

language of this record and that of the case referred to. In the case cited, the allegation was, that it was the duty of the defendant to carry the goods directly to Waterford ; hut here the allegation is, "that it was his duty to carry the lime by and according to the direct, usual, and customary way, course, and passage, without any voluntary and unnecessary deviation and departure."

The words usual and customary being added to the word direct, more particularly when the breach is alleged in "unnecessarily deviating from the usual and customary way," must be held to qualify the meaning of the word direct, and substantially to signify that the vessel should proceed in the course usually and customarily observed in that her voyage. And we cannot but think that the law does imply a duty in the owner of a vessel, whether a general ship or hired for the special purpose of the voyage, to proceed without unnecessary deviation in the usual and customary course.

We therefore think the rule should he discharged, and that judgment should be given for the Plaintiff. Rule discharged.


Comments

Per Cockburn CJ in Scaramanga & Co. v Stamp (1880) CA 295 at p.306:

In the result, I am of opinion that though the deviation of the Olympias, so far as relates to her proceeding to the Arion in the first instance, was justified, the taking the latter in tow, and departing from the proper course in order to take the ship to the Texel, this not being necessary in order to save the lives of the captain and crew, was an unauthorized deviation; and the loss of the plaintiff’s cargo having been the direct consequence of the deviation, or, to use the language of Tindal, C.J., in Daws v. Garrett [FN28], "the loss having actually happened whilst the wrongful act was in operation and force, and being attributable to the wrongful act," the defendants cannot avail themselves of the exception in the charterparty, and the plaintiff is, therefore, entitled to judgment.

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