CHARTER PARTIES

GENCON - Clause 3

Deviation Clause

CLAUSE 3

3. Deviation Clause	28
The Vessel has liberty to call at any port or ports in any order, for any purpose,	29
to sail without pilots, to tow and/or assist Vessels in all situations, and also to	30
deviate for the purpose of saving life and/or property.	31

According to the deviation clause that occurs in the GENCON charter party the ship may call at any port or ports, follow any route, tow, assist lives and/or property and for this reason deviate from his course. This clause, was taken rather broadly and is rather to the advantage of the Ship Owner than of the Charterer. This clause gives the Ship Owner the right to deviate without having to justify himself towards the Charterer or the receiver of the goods. However, this clause must be interpreted according to the common law and since the voyage was agreed by both parties, it will have to be performed in a reasonable way by the owner.

In principle the term deviation only includes a geographical deviation. It is a tacit agreement that a ship must use the shortest route to go to its destination port. What must be understood by the shortest route is very questionable because often the shortest route is not always the most suitable route. The master must judge about this in all conscience. In literature one often speaks of normal and reasonable route, terms which are certainly subject for discussion. Under no circumstances, the "deviation clause" gives the Ship Owner the right to alter the destination port.

In practice, beside the geographical deviation, one can also distinguish the non-geographical deviation like e.g. strike, stoppage, slow steaming, abnormal cargo handling, etc.

If the deviation clause in the GENCON charter party gives the Ship Owner a virtually indefinite freedom to change routes as he wishes, the issue of bills of lading under a charter party will considerably limit the scope of this clause. With the Hague Rules and the Hague-Visby Rules, which, regarding the negotiable bill of lading, falls inside the scope of imperative law, an end was put to the freedom at will to deviate from the route so that it is still only possible in well defined situations. Article 4, Paragraph 4 of the Hague-Visby Rules prescribes: "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 of these Rules or of the contract of carriage, and the carrier shall not be liable for any loss or damage resulting there from. It is therefore without any doubt clear that the Ship Owner is responsible for all damages which are the consequence of a deviation which is not permitted by the law viz. not to save lives or goods at sea, or which is not reasonable.

Concerning the term reasonable deviation the court must judge according to the circumstances if the reasons for the deviation are well founded. The master is however obliged to resume his original voyage as soon as these reasons come to an end.

Generally the "deviation clause" is interpreted to the advantage of the Charterer (or of the owner of goods). Consequently, if for a certain reason, the Ship Owner wishes to deviate without losing his rights, then that must be clearly mentioned during the chartering negotiations and in the contract of affreightment. For that reason, a "Bunker Deviation Clause" is often incorporated in the charter party which gives the Ship Owner not only the right to deviate to bunker but also to sail at a reduced speed with the aim to save fuel. (See also the worked-out GENCON charter party, Clause 25).

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