Ma Su Lae Nanda

1 LL.M – 3 (2019-2020)

Deviation

Many international ship lines use charter parties for the carriage of cargo
around the world. The term "charter party" stands for the contract between the owner
of a ship and the charterer, which may be the proper charter or charter party by
demise. As a charter party is a written charter agreement or the legal contract of
carriage, the terms under which the goods are carried and the obligations of
contracting parties are set out in that charter party, which is a legally binding and
internationally recognized document.

Under a charter party, the ship owner impliedly undertakes

Upon them, charter parties and contracts of carriage contain a clause giving
the carrier liberty to deviate from the contractual voyage. When the route is not
prescribed in the contract, the proper course is the ordinary trade route. Deviation is
an implied condition in every voyage charter party that the ship shall proceed on the
voyage without departure from her proper course. The essence of deviation is the
voluntary substitution of another voyage for the contract voyage. According to Article
3 of Gencon Uniform General Charter 1994, the vessel has liberty to call at any
port or ports in any order for any purpose, to sail without pilots, to tow or assist
vessels in all situations, and also to deviate for the purpose of saving life or property.

In certain cases, the deviation will be justified apart from any express terms of
the contract, and therefore, will not expose the ship owner to liability. These are

(1) For purposes necessary for the prosecution of the voyage or for the safety of the
adventure
(2) To save human life.

One of the main duties of the master is to use all reasonable care to bring the
adventure to a successful conclusion by protecting the ship and cargo from undue
risks, as an agent for the ship owner. Considerable latitude is given to him in the

1
 Ma Su Lae Nanda
1 LL.M – 3 (2019-2020)

matter of taking the ship off her proper course. When the ship sustains such damage
that repairs are necessary, he must put into the nearest port at which such repairs can
be effected. The same doctrine applies in the case of any other case such as
threatening the ship or her cargo, pirates, hurricanes, icebergs, or heavy fog. Even
though necessitated by the ship’s unseaworthiness at the commencement of the
voyage, the deviation is considered justified if it would be dangerous to keep her at
sea without effecting such repairs. In the case of Kish Vs. Taylor 1912 A.C. 604, the
master of a vessel took on board an excessive load of deck cargo to such an extent that
she was rendered unseaworthy. As a result of the unseaworthiness, she was obliged to
deviate from her normal route in order to proceed to a port for repairs. The court held
that the deviation was justifiable.

Deviation to save human life is always justified but it is not to save property
unless this is expressly stipulated. Thus, in Scaramanga v. Stamp case (1880) 5
C.P.D. 295, a ship deviated to assist another in distress but instead of merely saving
the crew, attempted to earn salvage by towing the distressed vessel into port, and, in
the attempt, went ashore herself and was lost with her cargo. It was held that the ship
owner was liable for the loss of the cargo although it was partly caused by "perils of
the sea" which were excepted by the charter.

Where there has been unjustifiable deviation, the ship owner cannot rely on
the exception clauses in the charter party and is only entitled to the benefit of the
exceptions available to a common carrier, e.g. Act of God, or Act of War, if he can
prove that the loss would have occurred even if no deviation had taken place.

Furthermore, the ship owner cannot claim the contractual rate of freight
payable under the charter party but may be entitled to a reasonable sum if the goods
are carried to their destination safely. Additionally, he cannot claim a general average
contribution from the charterer unless the breach of contract by the deviation has been
waived. In conclusion, the ship owner or carrier shall not be responsible for loss or
damage arising or resulting from saving or attempting to save life or property at sea or
any reasonable deviation.