Marine Deviation. Mistake or Deviation. Last updated 2 April 2014

Where … certain legal consequences are only attached to the act if it is accompanied by a particular intention, proof of a mistake may show that such intention did not exist in the case in question.
Renton’s Encyclopaedia of the Laws of England, 1897, vol.8 at p.434

Mistake

The report of Hain Steamship Company Ltd v Tate & Lyle Ltd [1936] 2 All ER 597 case says that the charterers of the "Tregenna" first nominated two Cuban ports for loading of sugar and while the vessel was loading in the first port, declared to the owners the San Domingo port San Pedro as the third port of loading. The owners received these orders and forwarded them to the master, but owing to default of the post office authorities in Cuba it never reached its destination. Upon completion of loading at the second Cuban port and having received no orders for a San Domingo port, the master indorsed the bills of lading for dead freight and then sailed for Queenstown, whither he was to proceed for orders. When within a few hours all parties became aware of the mistake, master by radio was ordered to proceed to San Pedro, which orders he obeyed and ship arrived at San Pedro and there loaded the cargo of sugar to her full capacity. On departure from San Pedro the ship went aground and the cargo was partly damaged and afterwards transshipped to another vessel and delivered to the receivers on condition of general average contribution. The consignees made a deposit and received the cargo, but then became aware about alleged deviation and sued the owners for general average contribution in respect of the sugar shipped at the Cuban ports, i.e. before the deviation.

On peculiar facts of this case Roche J at first instance held that though the charterers might give their orders to the owners or the owners’ representative but if Charterers’ orders happened not to reach the master the ship was under no obligation to go to those particular ports. The Court of Appeal held that so far as Charterers’ agent acting for the owners was accepted by them any failure of agent to deliver orders to the master constitutes the owners’ fault and made sailing of the ship in wrong direction a deviation.

Does owners’ fault constitute voluntarily and intentional departure?

I take the liberty to suggest that it is immaterial who failed to deliver correct sailing order to the master. The true question is whether act of the master and of the owners can be properly described as voluntarily and intentional departure from contracted route without taking in consideration the interests of all parties concerned. Departure from agreed course becomes deviation only when it accompanied by particular intention from the part of the carrier to consciously abandon contracted route and engage in the adventure of his own without consideration of the interests of all parties concerned, as a prudent person controlling the voyage, should have done, having in mind all the relevant circumstances existing at the time.

Moreover, such act of a prudent person, who considers all relevant circumstances and interests of different parties, implies the mind weighing, as in a balance, the good and evil on each side. Accordingly, there must be an election between two or several options and consent to follow such election, because law charges no man with default where there is not a consent and election . Clearly in Hain Steamship, was neither consent nor election to take another route, since the master never thought to choose any alternative route of that one contracted. His decision to sail on the wrong course was not a result of his free choice to pursue his own business instead of following an agreed route, as it was in most of other deviation cases; but a result of a failure in communication system. Indeed, without knowledge that orders had been changed, the master was under true misapprehension that he had followed the Charterers’ orders under the charterparty on hands, not the different course of his own election.

Finally unimportance of question why orders which the charterers passed to the owners have not reached the master can be seen from the following reasoning: Deviation is a breach by geographical departure from agreed route and therefore only master of the vessel can physically make it. If, for example, the owners forwarded to the master incorrect sailing orders, but master contrary to such orders delivers the goods to destination as per agreed contract, there obviously will be no deviation, even in spite of unequivocal intentions and orders from the owners. But if, in another example, the owners sent correct orders but master in pursuance of his own business departs from direct or custom course, it would definitely be a deviation.

The essence of deviation is a matter of choice

The only other authority on issue of deliberate and voluntarily departure is, by a coincidence, decision of Roche J in Rio Tinto v Seed Shipping (1926) 24 LIL Rep 316. In that case the master not being in perfect health, ordered the helmsman to steer south-south-east when proper course was south-south-west, which stranded the ship on rocks. Roche J addressed the matter of voluntariness in the following passage:

The essence of deviation [is] that the parties contracting have voluntarily substituted another voyage for that which has been insured. A mere departure or failure to follow the contract voyage or route is not necessarily a deviation, or every stranding which occurred in the course of a voyage would be a deviation, because the voyage contracted for, I imagine, is in no case one which essentially involves the necessity of stranding. It is a change of voyage, a radical breach of the contract, that is required to, and essentially does, constitute a deviation …
Here I am satisfied, and I find as a fact, that the master never intended to leave the route of the voyage, that is to say, the route of the voyage from Glasgow to Huelva. What he did was to make a mistake as to the compass course which was necessary to take him from the terminus a quo to the terminus ad quem. To use an analogy which, although analogies are misleading, I think at this stage is in order, he did not adopt another road instead of the road that he had agreed to take, but he got himself into the ditch at the side of the road which he was intending to follow. He was not on another route; he was on the existing route, although he was out of the proper part of the route which he ought to have followed. That is my finding of fact as to what happened; and in my judgment it follows from that that there was not that substitution or change of route which is necessary to constitute a deviation …

It is difficult to deny a big degree of soundness in this statement. Indeed, every case of grounding has an element of departure from the proper route between the ports agreed in the contract , but, of course not every grounding is a result of deviation. It should be also admitted, that a voluntarily departure must necessarily have an element of choice or intentional preference between two or several options, i.e. the shipowner must adopt one road instead of another one (that one he has contracted to follow). In all cases on marine deviation the master (or the owners or both) had a knowledge of voyage contracted and then intentionally and voluntarily has made a choice in favour of the course outside of contract terms to the port or place not stipulated in the contract.

In Hain Steamship, the master has had no knowledge of agreed route to San Pedro due to mistake in delivery of the Charterers’ orders, and, accordingly, he made no choice between the route to Queenstown and one to San Pedro, just because he had no idea that the charterers declared one more port of loading. Thus there was no deviation.

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Posted by: Aubrey, 12 August 2011

Thanks for using the time and effort to write something so interesting.
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