i-law

Voyage Charters

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Chapter 59

Deviation
[Clause 20(b) continued]
(vii) DEVIATION CLAUSE. The vessel shall have liberty to call at any ports in any order, to sail with or without pilots, to tow or to be towed, to go to the assistance of vessels in distress, to deviate for the purpose of saving life or property or of landing any ill or injured person on board, and to call for fuel at any port or ports in or out of the regular course of the voyage. Any salvage shall be for the sole benefit of the Owner.

Deviation in general

59.1 See . The consequences of a deviation may be very severe and deprive the shipowner of many defences. In The Sur,1 Moulder J. undertook a comprehensive assessment of the authorities and expressed the wish that the law on deviation should be assimilated to the general rules of the law of contract, but felt obliged to follow Hain v. Tate & Lyle to conclude that a geographical deviation prevented the shipowner from relying on the time bar in Art. III r.6.

Reconciling the deviation clause and clause 1

59.2 Clause 1 of the charter provides that the vessel shall proceed “direct to the Discharging Port(s)”, and the question, therefore, arises how clause 20(b)(vii) is to be reconciled with this provision. It is submitted that the effect of clause 1 is that, once the vessel is fully laden, she must proceed “direct” to the discharging ports named in Part I, or which the charterer is entitled to and does nominate, without calling at intermediate ports except for purposes which are necessary for the chartered voyage, and it follows that the liberty to call at any ports in any order must be restricted accordingly.2 A different approach may be taken when part cargoes are loaded, but that would result from the context of the charter being such that the parties contemplate intermediate calls. The remaining liberties apply in fairly restricted circumstances, and can be construed in accordance with their ordinary meaning, without depriving the obligation to proceed “direct” of any substance. The provisions of clause 1 can hardly be intended to make it unlawful to deviate in case of necessity,3 and it seems most unlikely that they were intended to make it unlawful for the vessel to follow a customary route, even though it may be longer than the direct geographical route.

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“to call at any ports in any order”

59.3 The effect of this phrase in general is that the vessel is entitled to call at ports which are substantially on the route for the purpose of taking on or discharging cargo.4 However, for the reasons discussed in the previous paragraph, it is submitted that, where the purpose of the call is to load or discharge cargo, the liberty must be restricted to calls at those ports which are contemplated by the parties to the charter. Restricted in this manner, the provision remains of some benefit to the owner, since it makes it clear that the bill of lading holder for part of the cargo cannot complain of a deviation if the ship calls at other ports, for the purpose of loading or discharging other cargo named under the charter. The effect of this phrase and its relationship with clause 1 has been considered by London arbitrators and held to cover a call at Los Angeles, on a voyage from Panama to Hong Kong, for the purpose of taking on water for the ship’s heating coils.5

“to go to the assistance of vessels in distress”

59.4 See .

“to deviate for the purpose of saving life or property”

59.5 See .

“to call for fuel at any port or ports in or out of the regular course of the voyage”

59.6 See as to the implied liberty to call for bunkers. This is another liberty which is not easily reconciled with the obligation to proceed “direct”, and it is submitted that it must be read narrowly, so as to permit bunkering calls only if the bunkering is necessary for the purposes of the chartered voyage, and only if they are at places which are substantially on the proper route.

Salvage

59.7 As a quid pro quo for the liberty to deviate in order to save property, which may result in the earning of salvage, the charterer is sometimes given the right to share in a salvage award. However, in the absence of an express clause, the charterer has no right to participate in a salvage award, or to salvage in his own right.6 This clause, therefore, merely confirms the general rule.