Voyage Charters

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Chapter 12

Deviation and Delay

3. Deviation clause1 41
The vessel has liberty to call at any port or ports in any order, for 42
any purpose, to sail without pilots, to tow and/or assist vessels in 43
all situations, and also to deviate for the purpose of saving life and/ 44
or property. 45

Basic obligation of the carrier

12.1 Since the case of Davis v. Garrett 2 it has been established law that, in the absence of any contractual provision giving liberty to deviate, the law implies “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”. A more recent statement of the principle is contained in the judgment of Lord Porter in Reardon Smith v. Black Sea Insurance.3 In addition, there is an implied obligation to commence and complete the voyage in the same ship4 again subject to any express right of substitution and to the implied liberty to transship in case of necessity.

Usual and customary route

12.2 In the absence of evidence to the contrary, the usual route will be presumed to be the direct geographical route.5 However, the usual route frequently differs from the direct route, for both navigational and commercial reasons and, unless the contract contains an express term which lays down the route that the ship is to follow, evidence is always admissible to show what is the usual or customary route between the loading and the discharging port.6

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12.3 Deviation involves an intentional adoption of a route which differs from the contract route; a failure to set the correct course for the next port, as a result of a navigational error, or an involuntary departure from the route caused by wind or currents, is no deviation.

A ship was chartered to carry cargo from Glasgow to Huelva. On departure from Glasgow the master, who was suffering from dyspepsia after a Christmas dinner, set the wrong course when leaving Glasgow and the ship ran ashore. Dealing with the issue of deviation, Roche J. stated:

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