Name: Ezekiel Yayra Amematsror Index Number: BPS0002720

Course: Carriage of Goods At Sea.

(a) Explain with reference to a specific case law what is meant by deviation under
contract of carriage.

(b) Analyse five sets of circumstances where deviation would be justifiable.

(a) The principle of deviation in ocean carriage has been recognised as the ancestor of the
principle of fundamental breach. Deviation was described in Joseph Thorley Ltd v Orchris
Steamship Co Ltd [2] as:

“A serious matter that changes the character of the contemplated voyage so essentially, that a
shipowner that has been guilty of a deviation cannot be considered as having performed his
part of the bill of lading contract but something fundamentally different and therefore he
cannot claim the benefit of stipulations in his favour contained in the bill of lading.”

The doctrine of deviation is a particular aspect of contracts of carriage of goods by sea. A

deviation is a departure from the "agreed route" or the "usual route", and it can amount to a
serious breach of contract.

The consequences of unjustified deviation can be very grave for the carrier, who is thereby
prevented from relying upon exclusion clauses within the contract limiting his liability; nor
will the carrier be able to rely on statutory protections, such as Art. IV of the Hague-Visby
Rules.

The "agreed route" is identified from the contract of carriage, as evidenced by the bill of
lading. The ports of origin and destination (e.g. "Piraeus to Liverpool"') define the route. The
"usual route" is not necessarily the shortest route, but is a version of the agreed route, taking
into account safety issues, distances, seasonal conditions and war zones. For instance, the
route "Auckland to London" could be via Suez, Panama, the Cape of Good Hope, or Cape
Horn, but the usual route will be identified by reference to current practice or to any previous
dealings of the parties.

Although a deviation is primarily a departure from the agreed route or the usual route, the
concept of deviation extends beyond this. Deviation may include any unjustified delay such
as remaining at authorised ports longer than necessary, or acting beyond the agreed scope of
the voyage. For example, if a ship makes an authorized call at a port, but stays on to trade or
break bulk, this action may amount to a deviation.
Name: Ezekiel Yayra Amematsror Index Number: BPS0002720
Course: Carriage of Goods At Sea.
The concept of deviation has been extended (sub nom “quasi deviation”) to cover wrongful
transhipment, careless stowage, and stowage in the wrong part of the ship (such as on deck,
rather than below decks). The consequences of quasi-deviation are the same as for ordinary
deviation.

Establishing the doctrine

Deviation in carriage of goods by sea is treated as a serious breach because it undermines the
carrier's prime duty to the shipper of the cargo, namely to carry the cargo to its destination
will "all due despatch".

The English common law of deviation is established by two cases, Glynn v Margetson and
Leduc v Ward.

In Glynn v Margetson (1893), a vessel was to carry a perishable consignment of Seville

marmalade oranges from Malaga to Liverpool. The contract included a "liberty clause" which
allowed the vessel "liberty to proceed and stay at any ports in any rotation in the
Mediterranean, Levant, Black sea or Adriatic, or on the coasts of Africa, Spain, Portugal or
France.” On leaving Malaga, the vessel did not head straight for Liverpool, but made her way
to Burriana, 350 miles up the coast. As a result of the delay, the cargo had deteriorated by the
time it reached England. The House of Lords (establishing the so-called "main purpose
rule"), held that the clause, if given full effect, would defeat the main purpose of the contract
and would be, in effect, an exemption clause which should be ignored. They gave the clause a
limited construction, namely that the vessel could have liberty to proceed and stay only at
ports reasonably close to the agreed route from Malaga to Liverpool, such as Cadiz or
Lisbon.

In Leduc v Ward (1882), a vessel was to voyage from Fiume (modern day Rijeka) to
Dunkirk. The bill of lading gave "liberty to call at any ports in any order". She did not
proceed to Dunkirk, but headed for Glasgow, and was lost in a storm near Ailsa Craig. Just as
in Glynn v Margetson, the Court of Appeal held that the deviation was unjustifiable and was
not permitted by the liberty clause, so the carrier was liable for the lost cargo. (Had the court
held that the deviation was justified, the carrier would have avoided liability as the storm
would have been an "Act of God"). Even though it was accepted that the shipper had been
verbally informed that the vessel might make passage to Glasgow, this evidence was not
admissible, because the parole evidence rule prevents recourse to extraneous evidence when
construing a written document. Using the criteria of differential bargaining strength of the
Name: Ezekiel Yayra Amematsror Index Number: BPS0002720
Course: Carriage of Goods At Sea.
parties, whereby the carrier is usually deemed to have greater bargaining power than the
shipper, note that the parole evidence rule may be relaxed if a shipper seeks to rely on any
verbal promises of the carrier (rather than vice versa, as in Leduc v Ward) .

(b) Article IV Rule 4 of the Hague-Visby Rules provides: "Any deviation in saving or
attempting to save life or property at sea or any reasonable deviation shall not be deemed to
be an infringement or breach of these Rules or of the contract of carriage, and the carrier shall
not be liable for any loss or damage resulting therefrom". The Hague-Visby Rules do not
define deviation, but rely on existing common law definitions. Nor do the Rules define “any
reasonable deviation”, but in decided cases the phrase has been taken to include deviation…..

In the Hamburg Rules, Art. 5, r. 6 provides somewhat more restrictively, that: “The carrier is
not liable, except in general average, where loss, damage or delay in delivery results from
measures to save life or from reasonable measures to save property at sea.”

 To effect necessary repairs, (though this may be evidence of unseaworthiness),

Phelps, James & Co v. Hill [1891] QB 605 CA Facts: the ship carried tin and iron
plates from Swansea to New York. During voyage, her equipment and cargo were
damaged by a storm. It is necessary for her to put back to a port of refuge. She went to
Queenstown where she was then ordered to return to their own yards in Bristol
because it is easier to find her spare parts and the repair would cheaper. At the Avon,
she was run down by another vessel and sunk. Plaintiff claimed for damage and loss
of his cargo. Court held: no unjustifiable deviation, taking into account Bristol is the
suitable port for the ship to be repaired.
 To save human life or aid a ship in distress where human life may be in danger
Scaramanga v Stamp (1880) 5 CPD 295 CA Facts: The Olympias chartered to carry
cargo (wheat) from Cronstadt to Gibraltar. On the voyage, she came across The Arion
that suffered engine failure. She then deviated to the position of The Arion and towed
it to Texel. On the way to Texel, she ran on Terschelling Sands which caused all the
goods and cargo. Plaintiff claimed for the loss. Court Held: defendant’s deviation is
justifiable. Deviation in order to save life considered as beneficial instinct, thus it is
unjust to held defendant liable.
Name: Ezekiel Yayra Amematsror Index Number: BPS0002720
Course: Carriage of Goods At Sea.
 Where reasonably necessary for the safety of the ship
Another example of such common law defences arose in The Teutonia where Lord
Justice Mellish sitting in the Judicial Committee stated:
‘It seems obvious that, if a Master receives credible information that, if he continues
in the direct course of his voyage, his Ship will be exposed to some imminent peril,
as, for instance, that there are Pirates in his course, or Icebergs, or other dangers of
navigation, he must be justified in pausing and deviating from the direct course’
 Where reasonably necessary to comply with an express or implied warranty
Kish v Taylor [1912] AC 604 HL Facts: The Wearside (the ship) was chartered to
load a full and complete cargo of timber. Charterers failed to provide full cargo. The
master then attempted to mitigate by obtaining additional cargo from other sources.
However it is overloaded and cause the ship to become unseaworthy. He deviated the
ship to port Halifax. Shipowner claim for lien, charterer argued the lien to be waived.
Court held: the charterer failed to provide for full cargo, make the shipowner to load
another cargo to fulfil the space. Therefore, the causation is because on the part of
charterer. Analysing the above case, it was on the default of the charterer since she
failed to provide full cargo as agreed which lead the carrier to look for additional
cargo hence leading to overloading of the vessel.
 Where caused by circumstances beyond the control of the Master.
 Where caused by barratry of the Master or crew (if barratry is an insured risk).
 To avoid foul weather.
 To join a convoy.
 To avoid capture or detention.
 To take stricken passengers or crew for medical attention.
 Mutiny of the crew.
 Permitted by the Contract (Liberty Clause).
 If authorised by any special term in the insurance policy.