A container ship routed around the Cape of Good Hope instead of through Suez adds some ten days at sea, a war risk premium and a bunker bill that someone will have to bear. The legal question of deviation lies entirely in that “someone”. Does a carrier who deviates incur liability towards cargo interests, or is he exercising a liberty the contract confers on him? The answer depends on the reason for the detour, on the regime governing the bill of lading and, very often, on a standard clause nobody read before the incident.
Deviation to save life or property is expressly covered
French law settles the clearest case without ambiguity. Article L. 5422-12 of the Transport Code lists the cases in which the carrier is relieved of the liability he bears for the cargo from taking in charge until delivery, and its point 8 covers “an act or attempt to save life or property at sea or a deviation for that purpose”. A vessel diverting to render assistance commits no breach of contract, however extensive the resulting delay to the cargo. The Hague-Visby Rules adopt the same solution and add, at article IV rule 4, the broader notion of reasonable deviation, whose assessment remains a matter for the court.
The whole dispute lies in that adjective. A detour compelled by a conflict zone, by the closure of a canal or by a credible threat to crew safety is readily defensible. A detour decided in order to load additional cargo at a nearby port, or to adjust a commercial rotation, is not: that is deviation for convenience, and it deprives the carrier of the exceptions and limits of liability he might otherwise have invoked.
Does your situation carry this risk? A first exchange allows us to measure it and to say how the matter would be organised.
BIMCO clauses shift the balance, provided they are incorporated
In practice, charterparties and liner bills of lading incorporate standard clauses organising in advance the liberty to deviate in the event of war risk or dangerous areas, foremost among them the BIMCO CONWARTIME clause for time charters and VOYWAR for voyage charters. They allow the master to refuse a route or a port he considers exposed, on the basis of a reasonable judgment formed at the time of the decision, not reconstructed afterwards in the light of what actually occurred. The clause must nonetheless appear in the contract, in its current edition, and the party relying on it must be able to evidence the material available at the date of the decision: security advisories, underwriters’ notices, flag State recommendations. A deviation file is built on the day of the deviation, never six months later.
Who pays the additional cost, and on what basis
The dispute rarely concerns the principle of the detour, almost always its invoice: war risk additional premium, extra bunker consumption, prolonged detention of the vessel, cascading demurrage, late delivery penalties owed to the end customer. Allocation depends first on the contract of carriage, then on the underlying sale contract. A seller who committed to a delivery date may seek relief under article 79 of the Vienna Convention on Contracts for the International Sale of Goods, by establishing an impediment beyond his control that he could not reasonably have foreseen or overcome. Where admitted, that relief exempts him from damages, not from his other obligations, and it does not operate where the contract had already addressed the risk by a dedicated clause. That is precisely what informed buyers now do: they have stopped pleading force majeure after the event and stipulate before it.
Based in Paris, the firm acts in all French ports, from Le Havre to Marseille and from Nantes-Saint-Nazaire to Antibes, as well as before the Chambre arbitrale maritime de Paris, and works in English with shipowners, P&I clubs and foreign counsel.
Typical cases handled
The situations below are illustrative, anonymised scenarios. They show when the firm steps in and what the work consists of.
Deviation via the Cape of Good Hope
A carrier rerouted the cargo because of the Red Sea attacks; the shipper suffers six weeks of delay and increased freight. The firm checks the liberty clause and the proportionality of the measure.
Perishable goods arriving damaged
The deviation caused the loss of a cargo of fruit. The work bears on the causal link between deviation and damage and on the carrier’s liability.
Detention charges billed to the consignee
The carrier invoices the consignee for immobilisation costs linked to the deviation. The firm contests the allocation of those costs under the contract of carriage.
Does your situation carry this risk? A first exchange allows us to measure it and to say how the matter would be organised.
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Frequently Asked Questions
May a carrier deviate without incurring liability?
Within limits. Deviation to save or attempt to save life or property at sea is permitted, and a reasonable deviation is excused under the Hague-Visby Rules. Beyond that, a departure from the contractual or customary route is a breach, and the carrier answers for the loss, damage and delay that follow from it. The line between reasonable and unreasonable is drawn on the facts: the reason for the departure, the alternatives available, the information the master actually had, and whether cargo interests were told. War risk and piracy routing decisions are assessed in that light rather than by the number of miles added.
What is the purpose of the CONWARTIME and VOYWAR clauses?
They give the owner a contractual right to refuse to enter, or to leave, an area the master or the owner reasonably judges dangerous because of war, piracy or similar risks, and to route the vessel elsewhere. Their value lies in converting what would otherwise be a deviation into a permitted act, and in allocating the additional cost. The clauses are not self-executing: the judgment must be reasonable, formed on the evidence available at the time, and exercised in good faith. Charterers usually challenge the decision rather than the clause, which is why contemporaneous records of the assessment are decisive.
Must cargo interests bear the war risk premium?
That depends on the charterparty and on the bill of lading. War risk clauses commonly place additional premiums, crew bonuses and transit costs on charterers, but the wording varies considerably between forms and amendments are frequent. Under a bill of lading, a shipper who is not a party to the charterparty is not bound by its cost allocation unless the terms are properly incorporated. Disputes therefore turn on two questions in sequence: what the clause says, and whether it binds this claimant. Both are settled by reading the documents rather than by the market practice invoked in correspondence.
Can a seller invoke force majeure for delay caused by a deviation?
Rarely on its own. Under a sale governed by the CISG, or under French law, the event must be beyond the seller’s control, unforeseeable when the contract was made and insurmountable in its effects. A routing change in a known risk area is often foreseeable, and an alternative route or carrier may exist, which defeats the last limb. A hardship clause drafted for the contract usually offers a better route than the general law, because it sets the trigger, the notice and the consequence. Notice requirements are where most of these claims fail, not the definition of the event.
What should cargo interests do when a deviation is announced?
Record the announcement, ask in writing for the reason and the intended route, and reserve rights before agreeing to anything. Consent given in a hurried exchange can turn a breach into an agreed variation and can also affect the cargo insurance position, so underwriters are told at the same time. Where the cargo is time sensitive, the loss must be mitigated and the steps taken documented, since recoverable damages are measured against that. The one year time bar under the Hague-Visby Rules runs from delivery, or from the date the goods should have been delivered.
Which court or tribunal decides these disputes?
Usually the forum named in the charterparty, which in the dry and tanker trades is frequently arbitration in London or New York, while claims under a bill of lading may be heard where the contract of carriage points or where the carrier is established. A French court can be seised where the vessel calls or where the defendant is established, and it will give effect to a valid jurisdiction or arbitration clause. Security is a separate question: a conservatory arrest in a French port can secure a claim that will be decided elsewhere.