Deviation clause. The word “deviation” can have a geographical meaning, where the vessel departs from its usual or customary route and then returns to it, or a purely legal, contractual meaning, where the contract is performed in a manner that is not originally contemplated, and this would be a departure from the manner agreed in the contract or implied by law. As an example of the latter form of “deviation”, cargo may be carried on deck when deck carriage is neither authorised nor acceptable, depending on the nature of the goods. For example, in The Chanda, the vessel carried delicate, sophisticated and expensive computer equipment on top of Number 1 hatch, close to tile forward part of the Vessel. Heavy weather damaged the cargo severely. This was a deviation from the contract of carriage and because of this the carrier was permitted to rely on the terms of the contract to limit his liability for loss or damage. The owner had breached the contract of carriage.
A geographical deviation may also be so serious as to prevent the shipowner from being able to rely on protection and limitation rights contained in the contract of carriage, be this charterparty or bill of lading.
During the carrying voyage the ship must follow the usual or agreed, direct route between the agreed ports. Some charterparties specify the route to be followed.
The ship is not permitted to leave this route for any purpose without justification. Deviation is an intentional departure from the direct or agreed route. Under the general law governing carriage of goods by sea, deviation is justified in certain circumstances. Any other deviation is a breach of the contract by the shipowner unless the contract allows the ship to deviate for an agreed reason. Such permission is found in the so called “Deviation clause” in the charterparty. For example, in the GENCON charterparty, it is stated:
“3. Deviation Clause
The vessel has liberty to call at any port or ports in any order, for any purpose, . . . and also to deviate for the purpose of saving life and/or property.”
This permission to deviate seems quite liberal. It must be remembered that GENCON is published by BIMCO, which is primarily a shipowners’ organisation. A charterer may very well wish a deviation clause to be deleted during the negotiation stage of a fixture. Other deviation clauses may be more restrictive of the shipowner’s freedom to deviate. For example, in the MULTIFORM charterparty it is stated:
“25. Any deviation in saving or attempting to save life and/or property at sea shall not be deemed to be an infringement or breach of this Charterparty and the Owners shall not be liable for any loss or damage resulting there from.
Should the vessel put into unscheduled ports) whilst on the voyage, the Owners are to inform Charterers and agents at discharging ports) thereof immediately.”
The ship is not permitted, without breaching the charter, “ . . . to call at any port or ports in any order, for any purpose . . .”. An example of a “purpose” will be a call to a port where the ship’s fuel can be obtained cheaply. Because a breach of the charter can cause the shipowner to become liable in damages to the Charterer, whether or not the charter is repudiated by the Charterer, the usual insurers of owners’ liability, P. & I. Associations, may recommend that a clause is inserted in the voyage charterparty allowing the shipowner to proceed to any port or ports where bunker fuel is available.
It should be noted that not every departure from the usual and customary route would be a “deviation”.
