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Lloyd's Maritime and Commercial Law Quarterly

DOES DEVIATION STILL MATTER?

Simon Baughen*

The law on maritime deviation continues to baffle every student to whom it is explained. Their reservations echo those of the judiciary, from Lord Wilberforce’s first expression of his doubts on the matter in Suisse Atlantique 1 to Lloyd, L.J.’s dicta in The Antares,2 which he repeated in the recent decision of State Trading Corporation of India Ltd. v. M. Golodetz Ltd. (The Sara D),3 to the effect that deviation should now be assimilated to the general law of contract. In this article I intend to examine the question of whether the traditional doctrine of deviation still survives and, if so, whether it should so survive. In particular, I shall consider the impact on the doctrine of the Hague and Hague-Visby Rules as applied in two recent cases of “quasi-deviation” involving unauthorized on-deck stowage, The Antares and The Chanda.4

1. THE TRADITIONAL VIEW

Deviation is an unauthorized method of performing a contract of carriage by straying from the usual geographical voyage. It is not just a breach of contract in the sense of performing the contract badly. It is more than that. It is a “fundamental” breach in the sense that it arises from the performance of the contract in a way not contemplated by the contract. To most laymen, one suspects, this is mere semantics. To a party injured by a breach of contract the reality of either situation is the same. To such a party there are only varying degrees of “badness” in the way in which the contract has been misperformed. However, the distinction has a strong appeal to the judicial mind and it formed the basis of the rule in deviation and of the doctrine of fundamental breach which infected the general law of contract in the 1950s and 1960s.
There are three basic situations in which a deviation may occur. The first is where a ship strays from her voyage but no damage whatsoever is thereby caused to the goods carried on board her. The second is where the deviation contributes to but is not the sole cause of damage or loss to cargo carried on the voyage. The third is where the cargo is actually lost or damaged during the deviation itself. Deviation in these three situations may have two effects. Its first effect is in debarring a ship-

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