A Preliminary Study on the Carrier's Obligation of Reasonable Deviation

Abstract: On July 21, 2017, during a random inspection conducted by the Port of Montreal, Canada, four stowaways were found hiding in a container containing a car and some food on an Oriental Overseas (OOCL) container ship just arriving at the port. Suppose you were the captain of the ship, what measures would you take to dispose of or arrange for stowaways? Would you like to return to your original port of loading, or change course to another port so that stowaways can leave the ship? Or would you like to continue to sail to the port of discharge before arranging for stowaways to leave the ship?

It can be found that when taking the above measures, ships may face the problem of deviation from the original planned route, that is, deviation of ships in shipping practice. Deviation of ships may result in delayed delivery of goods, and then lead to disputes between the ship and the cargo, and the focus of the dispute is whether the deviation is reasonable. Therefore, based on the Maritime Code of our country, the author will preliminarily explore the legal problem of reasonable deviation, including the definition of deviation, the different circumstances constituting reasonable deviation and its judging standards under different international conventions and national laws.

Keywords: reasonable deviation | international rules

I. What is "deviation"?

The so-called deviation of ships means that the ship sails from the carrier and the shipper in the voyage, or the customary or geographical route.

Paragraph 1 of Article 49 of the Maritime Code of our country stipulates that: "The carrier shall carry the goods to the port of discharge according to the agreed or customary or geographical route."That is, if there is an agreement between the carrier and the shipper, the ship shall go by the agreed route; if there is no agreement, the ship shall go by the customary route between the two ports of loading and discharging; and if there is no agreed or customary route, the ship shall go by a geographical route.

II、 What is "reasonable deviation"?

Deviation of ships is divided into reasonable deviation (also known as "just deviation") and unreasonable deviation (also known as "unjust deviation"). The law does not prohibit any ship from deviating; it merely prohibits unreasonable deviation. So why does the law prohibit unreasonable deviation?

Zhang Xinping, a Taiwanese scholar, believes that: "Deviation easily results in the following disadvantage to the shipper: (1) the cargo is susceptible to unpredictable risks; (2) it results in the delay in delivery of the cargo, the loss of business opportunities for the consignee to resell or sell at a high price; and (3) it results in the increased risks of the original liability insurance and the cargo insurance contract."

As an exception to the principle of prohibition of deviation, Article 49 (2) of the Maritime Code of the People's Republic of China provides that "any deviation by a ship in saving or attempting to save life or property at sea or any other reasonable deviation shall not be deemed as an act in violation of the provisions of the preceding paragraph."

According to this provision, reasonable deviation generally includes the following circumstances:

(1) any deviation in saving or attempting to save life at sea (usually including assistance to crew or passengers on board other ships or on board one's own ships, such as answering distress signals, obtaining medical aid for sick and injured crew or passengers, etc.);

(II) any deviation in saving or attempting to save property at sea;

(III) any deviation in other reasonable causes, including any deviation of the ship from the course in order to avoid typhoons or other perils of the sea (such as ice, storm, war, etc.), or for the mutual interest of the ship and the cargo or for other reasonable needs.

III、 CRITERIA FOR DETERMINING REASONABLE DEVIATION UNDER DIFFERENT INTERNATIONAL CONVENTIONS AND NATIONAL LAWS

The criteria for determining reasonable deviation are different under the relevant international conventions and the laws of different countries:

(1) British common law

Under British common law, a deviation from the course by a carrier in order to save or attempt to save life is a reasonable deviation, which is considered reasonable even if it is subsequently proved that an attempt to save life was unsuccessful or unnecessary. Furthermore, a deviation from the course in order to avoid risk to the ship or cargo is considered reasonable, even if the risk was caused by the ship's initial unseaworthiness.

The British common law classifies whether a deviation is reasonable or not from the criterion of "teleology", without regard to what causes it to occur. It should be noted that the second type of reasonable deviation referred to above should also be taken into account whether the interests of all parties are taken into account. Deviations alone for the benefit of shipowners are rarely considered reasonable, as is a well-known example:

In 1942, a British freighter carrying a cargo of coal from the Swan Sea to Estanburg, had two engineers on board to debug machinery before sailing, but did not complete the debug until after sailing. The freighter deviated from the course to an adjacent port to facilitate an engineer's nearest landing. When the two landed, the ship left the port, then ran aground and the cargo was destroyed. Although the ship only slightly deviated from the course, the British Court of Appeal's final decision did not constitute a reasonable deviation, on the grounds that the interests of both the ship and the cargo should be taken into account. Although the debug work was also to ensure the safety of the ship, the ship's interests were taken into account only when the ship's interests, not the interests of the merchant.

(II) Hague Rules and Hague-Visby Rules

The Hague Rules and the Hague-Visby Rules both expressly provide in article 4, paragraph 4: "Any deviation in saving or attempting to save life or property at sea, or any other reasonable deviation, shall not be considered a breach of this Convention or of the contract of carriage, and the carrier shall not be liable for any loss or damage resulting therefrom."

It can be seen that the scope of reasonable deviation here is much broader than that of English common law, where "deviation" arising solely from the purpose of saving life or property at sea, and where there is an attempt to save property, is considered a reasonable deviation even if there is no actual salvage.

The Hamburg Rules

Article 5, paragraph 6, of the Hamburg Rules provides that "the carrier shall not be liable for any loss of or damage to the goods or for any delay in delivery resulting from measures taken to save life or from property at sea that are reasonable for the purpose of saving property at sea, with the exception of general average."

Compared with the Hague Rules and the Hague-Visby Rules, the scope of reasonable deviation under the Hamburg Rules is reduced, specifying that the salvage of property must be done by taking reasonable measures and excluding those situations where unreasonable measures were taken to save or attempt to save property at sea.

The Maritime Code of the People's Republic of China

The provisions of the Maritime Code of the People's Republic of China are similar to the Hague Rules. Combined with the cases mentioned in the Summary, the settlement of stowaways could not constitute a reasonable deviation because it was only for the sole benefit of the carrier. Therefore, a deviation by the carrier for the purpose of repatriating stowaways to the port of departure or to a third party port on an unplanned route does not constitute a reasonable deviation. Therefore, if any stowaways are found on board, the carrier should first ensure the safety of the crew and passengers and the goods; secondly, ensure the safety and health of the stowaways and restrict their movement on the premise of treating them humanely; finally, immediately contact the shipping company, the Shipowners' Protection Association, the port and the authority in charge of maritime affairs to send the stowaways to land and hand them over to the authorities concerned for repatriation at an appropriate port of call. The expenses and associated losses arising from the deviation from the route through the above-mentioned measures can be reimbursed by insurance underwritten by the Shipowners' Protection Association.

Through the understanding of the meaning of reasonable deviation, we know that the placement of stowaways may constitute an unreasonable deviation. Is it reasonable for a ship to deviate from its course in order to avoid pirates?

In the movie "Captain Philip," the Maersk Alabama "container ship is sailing off the coast of Somalia in Africa when she receives an email from the company, which mentions that several previous cargo ships have been attacked by pirates in the coast of Somalia. After learning about this, Captain Philip decides to bypass the sea to reduce the chances of pirates. According to the provisions of Article 49 of our "Maritime Code", avoiding pirates' attack is for the common safety of the cargo and the ship, so the author thinks it can be reduced to "other reasonable deviations", that is, this action can constitute a reasonable deviation.

Conclusion