The future of deviation

Thesis

The deviation doctrine provides that in cases of termination for breach by deviation a contract of carriage will be rendered entirely unenforceable. It follows that a deviating carrier will be deprived of the benefit of all exemption and limitation clauses contained within that contract, even in cases where the deviation is minor. This approach is unduly harsh on the deviating carrier. The deviation doctrine, although a longstanding feature of maritime law, has been subjected to considerable judicial and academic criticism. Although the need for reform is clear, there is significant disagreement as to what the future of deviation ought to look like.

This thesis makes the case for reforming the deviation doctrine in line with the principles of general contract law. The thesis builds upon existing scholarship by dissecting the view that deviation is inherently special. The thesis contends that there are no justifications for the deviation doctrine existing as a body of law sui generis. Whilst historical explanations for such treatment can be found in the law of marine insurance and bailment, changing commercial practices have rendered a breach of the duty not to deviate comparable to breaches of other terms of a contract of carriage. It follows that alternative proposals for the future of deviation are misguided in so far as they presuppose the need for a special solution to what is now simply an ordinary contractual problem. With this notion dismantled, the thesis concludes by examining each stage of a claim for breach of a contract of carriage by deviation in turn, to demonstrate how the application of general contractual principles would clarify the existing law and provide doctrinal consistency.

Authors: Somers-Joce, C

• DOI: 10.5287/ora-eobav5oem
• Type of award: MPhil
• Level of award: Masters
• Awarding institution: University of Oxford
• Language: English
• Keywords: deviation; international trade law; contracts for the carriage of goods by sea
• Subjects: International trade; Law