Deviation Under the “Voyage Charter” By Jeffrey A. Weiss Under the typical voyage charter party, the shipowner places the vessel at the charterer's disposal to carry cargo on a single voyage. The shipowner retains control over the vessel's navigation and pays for the vessel's operating costs. The voyage charterer is responsible for providing the agreed cargo and for the payment of freight. Under most voyage charters, the charterer also agrees to pay for the vessel's loading, stowing, and discharging expenses. However, this, like any other term in the charter party, can be modified by agreement. This article concerns the shipowner's right to "deviate." The word "deviation" can have a geographical meaning, for example, where the vessel departs from the usual and customary route, or makes unscheduled calls at intermediate ports to load additional cargoes, or for bunkering, etc. The term can also mean that the charter party is performed by the shipowner in a manner that was not originally contemplated, such as when the owner performs the carriage by use of a substitute vessel, or where the cargo is wrongfully transshipped onto another vessel, or where the cargo is stowed on deck when deck stowage was not authorized nor acceptable. Naturally, the voyage charterer is interested in having the cargo transported from the port of loading to the port of discharge without unreasonable delay and without being exposed to risks not otherwise expected. The shipowner wants the liberty to trade its vessel or vessels freely. A deviation may be considered a fundamental breach of the charter party. However, not all deviations are wrongful. Only "unreasonable" deviations constitute a fundamental breach of contract. The consequences of an unreasonable deviation are severe. Owners will lose protections against responsibility for cargo loss or damage that it otherwise enjoys under the contract of carriage or the maritime law. Owners may also lose the right to seek general average contributions from the charterer or cargo interests in the event that the sacrifices or expenditures are causally connected to the unreasonable deviation. The owners may become responsible to the cargo interests for damages not otherwise ordinarily recoverable, such as consequential damage for loss of production or markets. Owners may even have to refund freight that would ordinarily be guaranteed and non refundable despite nondelivery of the cargo. Basic risk management requires that such serious risks should be eliminated or minimized. Greater knowledge and awareness of the dangers among an owner’s operational staff' can eliminate or reduce these risks. Geographic Deviation In the absence of a specific provision to the contrary in the charter party, the maritime law imputes a duty in the owner of a vessel to proceed without unnecessary deviation in the usual and customary course for the voyage. The ship must follow the usual or agreed route. It is not permitted to leave this route for any purpose without justification. Therefore, a geographic deviation is an intentional departure by the vessel from the agreed or usual route. If the deviation is unreasonable, it is a breach of contract by the shipowner for which the consequences are harsh. Only unreasonable deviations are wrongful Thus, the vessel may always deviate for the purpose of saving property or life at sea. However, the maritime law treats a departure from the usual and customary route of the voyage to load or discharge cargo as being strong evidence of an unreasonable deviation. This was codified in the Carriage of Goods By Sea Act 1936. which states: "Any deviation in saving or attempting to save life or property at sea, or any reasonable deviation shall not be deemed to be an infringement or breach... or of the contract of carriage, and the carrier shall not be liable for any loss or damage resulting therefrom: Provided, however, that if the deviation is for the purpose of loading or unloading cargo or passengers it shall, prima facie, be regarded as unreasonable". Deviating to load or discharge cargo for someone else's account is prima facie unreasonable. Therefore, the law places a heavy burden on the shipowner to demonstrate the reasonableness of its conduct (thereby rebutting the presumption of unreasonableness). This is not impossible. It will depend upon the facts and circumstances of the case. For example, in the case involving the MV TAI SHAN, 1953 A.M.C.887, the owners were able to meet its burden. The TAI SHAN loaded cargo bound for the United States at Taku Bat off the North China Coast. After loading, and over cargo interest's objections, the owners directed the vessel to Cebu in the Philippines to load additional cargo for another account. This added an additional 4,858 miles and 46 days to the expected voyage. The original cargo was damaged in the Philippines and the vessel's owners were accused of committing an unreasonable deviation to the Philippines. The Court ruled that it was not an unreasonable deviation and that owners had met its heavy burden for numerous reasons including 1) the amount of cargo loaded at Taku Bat was a small percentage of the vessel's overall cargo capacity; 2) about one quarter of all vessels serving Taku Bat make additional calls in South Asia before making the Pacific crossing. Deviating to load cargo for another's account will create a presumption of unreasonableness. However, as the TAISHAN case demonstrates, the presumption can be successfully rebutted. The propriety of a deviation remains a question of fact. Courts and arbitrators, when asked, will review many factors including the vessel's or company's trading patterns, past dealings, if any, between the parties, the economies of the trade, customary practices of other vessels in the trade, whether any language in the charter party expressly addresses the issue (such as a permissible port rotation clause) and, of course, what was discussed by the parties during the fixture negotiations. Ships laden with cargo routinely call at intermediate ports for the purpose of loading bunkers. If it is typical for a vessel in a particular trade, or of a particular class, to call at a port for bunkering during the course of a voyage, than that port becomes within the "usual and customary route", and will not amount to an unreasonable deviation. For example, shipowners met their burden in the English law case involving the INDIAN CITY (1939 A.C. 562). In that case the vessel was deviated to Constanza for bunkers, which added an additional 193 miles more than a direct route to the port of discharge. The vessel grounded at Constanza and the owners incurred general average sacrifices. The charterers refused to contribute into the general average and contended that the call at Constanza was an unreasonable deviation (thereby defeating owner's right to seek general average contributions). The evidence revealed that this particular owner had made several previous voyages for the charterer and, on all but one, the vessel bunkered at Constanza. It was also understood that since bunkers were somewhat cheaper at Constanza (as opposed to ports, more directly enroute), the owner of the vessel, as well as many other shipowners, followed the same practice. The Court held that the owners had sustained the burden of demonstrating the reasonableness of their actions. However, years ago, I worked on a case involving the deviation for bunkers of the tanker Cepheus (MV Cepheus Arbitration, 1990 AMC 1058). The Cepheus was a tank vessel that loaded some 210,000 barrels of gasoline at Freeport, Bahamas for discharge at Anchorage, Alaska. The vessel sailed from Freeport with 860 tons of fuel oil onboard. This was acknowledged as a sufficient quantity for the vessel to make the voyage to Anchorage with a 15 to  safety margin. While proceeding to the discharge port, the Master of the vessel was advised of the vessel's next employment, which was to be the carriage of rapeseed oil from Vancouver, British Columbia to India. Owners ordered the vessel to deviate to Los Angeles for bunkers. Put simply, owners deviated the vessel to Los Angeles to take on inexpensive bunkers for the vessel's next voyage (bunkers were cheaper in Los Angeles opposed to ports in the Northwest United States).                  The vessel lost only around twelve hours while bunkering in Los Angeles. The additional bunkers increased the vessel's draft by about five inches and altered her trim from a four foot drag to almost an even trim. Unfortunately, when the vessel subsequently arrived at Homer Pilot Station (Anchorage, Alaska) the weather had deteriorated significantly and ice conditions were encountered. While attempting a 180degree turn towards her berth, the vessel veered off to port and ran aground on the southern edge of "No Name Point". There was significant hull damage and loss of cargo. Owner declared general average. Numerous claims arose out of the grounding. owners sought general average contributions from the charterer and cargo interests in the amount $279,000 (for expenses incurred in removing the stranded tanker from the beach, shifting her to the nearby berth, and related expenditures). The vessel suffered over $3,000,000 in hull damage and related losses which owners sought to recover from the charterers under the safe port / safe berth warranty Lastly, cargo interests brought a claim against the owners for a cargo loss in excess of $4,000,000. After many hearings, the Arbitration Panel ruled that the vessel had committed an unreasonable deviation when she called upon Los Angeles for bunkers. The vessel had sufficient bunkers onboard to accomplish the Freeport / Anchorage voyage. The majority of the Panel stated that: ... the Cepheus's deviation into Los Angeles for nonvoyage related bunkers increased the vessel's draft and modified her trim, both of which could have affected the Cepheus' maneuverability at the critical turning point. There was an enhancement of cargo exposure to loss. Also the delayed arrival at Homer and later transit to the critical approach point in Anchorage harbor exposed the vessel to fog and harbor ice which it would not have otherwise have had the purpose of saving life and/or property... to contend with. The "error in navigation" which we believe caused the stranding is simply not available to owners.” The result was a disaster for the owners and their insures. The shipowner was deprived of the error in navigation defense to cargo loss that it otherwise enjoyed. The shipowner was also stripped of its right to seek general average. The safe port / safe berth claim for hull damage was also denied. An "on deck" deviation (sometimes referred to as a quasi  deviation) involves those situations in which cargo is stowed on deck, despite the shipowner not being expressly authorized to do so by the shipper, or by customary practice in the trade. The rule is firm. Absent an agreement to the contrary in the contract of carriage, or an established custom permitting on deck stowage, a shipper can expect its cargo to be stowed below deck. An on deck deviation deprives the shipowner of the benefits and limitations it would otherwise enjoy in the contract of carriage and the law. The carrier must prove that an agreement was reached with the cargo interests or that it was customary in the trade to carry the goods on deck. For example, in one case a vessel carried delicate and expensive computer equipment on the top of number 1 hatch, close to the forward part of the vessel. Heavy weather damaged the cargo severely. This was a deviation from the contract of carriage and the carrier was not permitted to rely upon the protections it would ordinarily enjoy in the charter party or bill of lading A shipowner seldom desires to leave cargo on the dock. However, loading cargo unlawfully on deck can be risky. An unreasonable deviation will ordinarily strip the carrier of its immunities and limitations of liability that are normally provided by law. The carrier may not be able to invoke the package limitation under U.S. COGSA (or similar statutory laws), may not rely upon U.S. COGSA excepted perils (error in navigation, among others) and will generally be exposed to greater risk of liability. As such, P and I Clubs typically state in their rules that there is no cover for liabilities, costs or expenses arising out of a deviation whether geographical or otherwise. However, the Clubs have also advised that they might cover liabilities arising out of an unreasonable deviation on amended terms. This will depend upon the information provided by the member. The Club will, of course, look at the flagrancy of the proposed deviation under applicable law to decide whether the risk would violate fair concepts of mutuality. Vessel owners and operators are advised to talk to P and I prior to the deviation, or at the earliest stage possible when it is believed that a deviation might occur.