Lloyd's Maritime and Commercial Law Quarterly
Deviation: a doctrine all at sea?
Martin Dockray *
The doctrine of deviation is a long-standing feature of English maritime law.1
Deviation, in this context, means the voluntary and unjustified departure of a ship from her agreed route. In the law of carriage of goods by sea, deviation is treated as a breach of contract which has special consequences. The House of Lords decided in Hain Steamship
v. Tate & Lyle
2
that, however minor or harmless a deviation might be, a breach of this type always gives the innocent party the right to treat the contract of affreightment as having ended at the moment the deviation began. Where an election of this type is made, then, from the commencement of the deviation, the innocent party is not bound by exclusion clauses or by any other term in the contract in favour of the carrier, including the obligation to pay freight on delivery of the cargo.
The Hain
approach to the effect of deviation on carriage contracts contributed to the development of the idea that a fundamental breach of contract had a special effect in English law. That general idea, however, was discarded by the House of Lords in Suisse Atlantique
3
and Photo Production
v. Securicor
.4
But the decision in Hain
was not overruled5
so that the law relating to deviation in contracts for the carriage of goods in a ship is now hopelessly at odds with the general law of contract.
How did this happen? And does it matter? This article tries to answer these questions by looking at the origins and subsequent evolution of the doctrine. It concentrates on three key decisions and argues that the present position was reached only in stages. Part I deals with origins and the case of Davis
v. Garrett
in 1830; it suggests that the roots of the doctrine are older than is usually supposed and lie in the law of bailment, admiralty law and the law merchant. Part II deals with the period 1890–1936 and suggests an explanation for the puzzling judgment of the Court of Appeal in Balian
v. Joly, Victoria,
which triggered developments in this period. Part III deals with the way in which earlier doctrine was revised by the House of Lords in 1936 in Hain
. The article concludes that the modern law relating to the effect of deviation on a carriage contract is unjustified. It
* Professor of Law, City University, London.
1. There is a strong periodical literature. See generally: Chorley (1940) 3 M.L.R. 287; Coote [1970] Camb. L.J. 221; Tetley & Cleven (1971) 45 Tulane L.R. 810; Lee (1972) 47 Tulane L.R. 155; Freidell (1981) 32 Hastings L.J. 1535; Mills [1983] LMCLQ 587; Debattista [1989] J.B.L. 22; Reynolds, The Butterworth Lectures
1990–1; Baughen [1991] LMCLQ 70.
2. (1936) 41 Com. Cas. 350; 55 Ll. L. Rep. 159; 52 T.L.R. 617; [1936] 2 All E.R. 597.
3. Suisse Atlantique Soc. d’Armement Maritime SA
v. N.V.Rotterdamische Kolen Centrale
[1967] 1 A.C. 361.
4. [1980] A.C. 827.
5. Judgment in Suisse Atlantique
was given on 31 March 1966. The Practice Direction which gave notice that the House would no longer regard itself as bound by its own previous decisions was not issued until 26 July 1966.
76