Lloyd's Maritime and Commercial Law Quarterly
THE CONFUSION OF INCIDENTS OF COMMON CARRIAGE WITH INCIDENTS OF DEVIATION
Hamish Dempster*
This article describes how incidents of common carriage have been wrongly attributed to deviation. Deviation has long resulted in anomalous incidents. The origin of those incidents is Davis v Garrett, which concerned a deviation by a common carrier. Courts in the later nineteenth century failed to recognise that the defendant in Davis v Garrett was a common carrier. Consequently, they misinterpreted that case, and applied incidents properly belonging to the common callings regime to defendants who ought not to have been subjected to that regime. The result was, and is, muddle, rationalising and injustice. Some principles for reform of this area of law are suggested.
I. INTRODUCTION
A deviation, strictly speaking, is a breach of a covenant to travel by sea to a destination directly.1 A deviation is usually committed by a carrier of goods by sea as against the shipper of those goods,2 but an owner can also commit a deviation as against the charterer by taking the ship on a voyage other than that for which it was chartered.3 Deviation at sea is a contextual example of a more general concept: a carrier of goods by land can also deviate by taking goods on a route other than the contractual route.4
Two incidents of deviation are anomalous. It was held in Hain Steamship Co Ltd v Tate & Lyle Ltd
5 that a carrier who deviates loses the benefit of his exception clauses or, worse, all terms inserted for his benefit. Secondly, a carrier who deviates is strictly liable for loss of, or damage to, goods carried, in the sense that the rules on causation and remoteness do not apply, in contrast to ordinary tort and contractual liability. These incidents gave rise to the notion that a deviation is a particularly serious breach of contract.6 But, since many deviations appear trivial, a further notion developed that a deviation is a
* Barrister and Senior Lecturer, Victoria University of Wellington: I am most grateful to Dr Laurie Teal for her comments on various drafts of this paper.
1. Dempster, “Deviation and the Ordinary Law of Tort” (forthcoming).
2. Holland v Harecourt (1611) 1 Bulstr 176; 80 ER 866; Betsworth v Clerke (1679) Rep temp Finch 435; sub nom Anon (1677) 2 Ch Cas 238; 22 ER 925; Newland v Horseman (1681) 1 Vern 21; 23 ER 275; Davis v Garrett (1830) 6 Bing 716; 130 ER 1456; Scaramanga & Co v Stamp and Others (1880) 5 CPD 295; Leduc & Co v Ward and Others (1888) 20 QBD 475; Balian v Joly, Victoria & Co (1890) 6 TLR 345 (CA).
3. Jarvis v Midleton (1680), Lord Nottingham’s Chancery Cases Vol.2 1073: (1961) 79 Seld Soc 855.
4. Mallett v Great Eastern Railway Co [1899] 1 QB 309; London & North West Railway Co v Neilson [1922] 2 AC 263 (HL).
5. (1936) 41 Com Cas 350 (HL).
6. Joseph Thorley Ltd v Orchis Steamship Co Ltd [1907] 1 KB 660 (CA), 669.
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