2.16.8 Diversion - deviation

Diversion needs to be distinguished from deviation. A diversion from a course or route may be justifiable if necessary, e.g. to save life; a deviation is usually unjustified and may deprive the Company of defences or rights of limitation that might otherwise be available. The P&I insurance normally covers the Company for certain extra costs incurred in diverting a ship to land an injured or sick person, search for a person missing from the ship and for the purposes of saving persons at sea. The Company will often be under a duty to divert the vessel in such cases and if it does not the Company may be exposed to liability.

P&I cover for cargo liability may also be prejudiced if such liability arises from a deviation. There is an implied duty under contracts of carriage to prosecute the cargo voyage by the usual and customary route and with reasonable dispatch. If the carrier intentionally commits a deviation and is not excused from doing so by either custom, agreement or statute there is a risk that certain defences or rights of limitation will not be available to the carrier, which may otherwise have been available under the contract.

Although most, if not all, contracts of carriage contain a liberty clause, which seeks to expand what is to be considered “usual and customary”, e.g. “to call at any ports in any order”, the courts will generally restrict the carrier’s ability to rely on such clauses and if the deviation is committed purely for the carrier’s own benefit it is unlikely to be considered justified, even within the context of a liberty clause. In many cases, the P&I insurer can arrange additional insurance for deviations on the Company’s behalf and at their expense. If a diversion from the planned route is intended, the Master, or more usually the Company, should seek prior authorisation from the P&I insurer.

Please refer to Gard Guidance on Bills of Lading.