Provide three examples where there could be reasonable
deviation under the Hague Rules as applicable in
Malaysia under the Carriage of Goods By Sea Act 1950.
Article IV Rule 4 of the Hague Rules :
“ 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 this Convention or the contract
of carriage, and the carrier shall not be liable for any loss or
damage resulting therefrom.”
Carriage of Goods by Sea Act 1950
“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 the contract of
carriage,and the carrier shall not be liable for any loss or
damage resulting therefrom.”
General rule : a sea carrier (ship) shall not deviate from its
usual and customary route.
Davis v Garrett (1830) 6 Bing 716 Court of Common
Tindal CJ : “…we cannot but think that the law does imply a
duty in the owner of a vessel, whether a general ship or hired
for the special purpose of the voyage; to proceed without
unnecessary deviation in the usual and customary course.”
Reasonable deviation had received a very strict
The heads provided in the Rule, “deviation is saving or
attempting to save .. Property at sea” and “any reasonable
It can be deduced there are three general situations where
deviation is allowed :
1) To save human life or to communicate with a vessel in
distress in case lives maybe danger.
2) To avoid danger to the ship or cargo
3) Deviation made is because of the default on the part of
Scaramanga v Stamp (1880) 5 CPD 295 CA
Facts: The Olympias chartered to carry cargo (wheat) from
Cronstadt to Gibraltar. On the voyage, she came across The
Arion that suffered engine failure. She then deviated to the
position of The Arion and towed it to Texel. On the way to
Texel, she ran on Terschelling Sands which caused all the
goods and cargo. Plaintiff claimed for the loss.
Court Held : defendant’s deviation is justifiable. Deviation in
order to save life considered as beneficial instinct, thus it is
unjust to held defendant liable.
Phelps, James & Co v. Hill  QB 605 CA
Facts : the ship carried tin and iron plates from Swansea to
New York. During voyage, her equipment and cargo were
damaged by a storm. It is necessary for her to put back to a
port of refuge. She went to Queenstown where she was then
ordered to return to their own yards in Bristol because it is
easier to find her spare parts and the repair would cheaper.
At the Avon, she was run down by another vessel and sunk.
Plaintiff claimed for damage and loss of his cargo.
Court held : no unjustifiable deviation, taking into account
Bristol is the suitable port for the ship to be repaired.
Kish v Taylor  AC 604 HL
Facts : The Wearside (the ship) was chartered to load a full
and complete cargo of timber. Charterers failed to provide
full cargo. The master then attempted to mitigate by
obtaining additional cargo from other sources. However it is
overloaded and cause the ship to become unseaworthy. He
deviated the ship to port Halifax. Shipowner claim for lien,
charterer argued the lien to be waived.
Court held : the charterer failed to provide for full cargo,
make the shipowner to load another cargo to fulfill the space.
Therefore, the causation is because on the part of charterer.
Shazanah Vessel Ownership Sdn Bhd (SVO) was the
registered owner of the Malaysian flagged general cargo
vessel, the M.V. Leemar. On 2 January 2013, she was chartered
by Chartering Khabal Bisnez Sdn Bhd (CKB) for a voyage
from Kota Kinabalu, Sabah to Singapore. Under the Gencon
standard form charterparty, the freight payable was USD100
per ton and the ship had the capacity to carry 4000 tonnes of
On 3 January 2013, the MV Leemar arrived and docked at
Kota Kinabalu Port. Loading commenced an hour later at 9
am. After half the cargo of plywood was loaded on board, the
MV Leemar had problems maintaining her trim and stability.
Loading the remaining 2000 tonnes was stopped by CKB and
the cargo was left on the dock side. A ship’s technician who
arrived at the scene investigated the problem and concluded
that it was a software glitch which caused the ship’s computer
to miscalculate the ship’s trim. At that point of time, there
were no internet services available at the port because
‘anonymous’ hackers had launched ‘global denial of service’
attacks which crippled the World Wide Web.
As there was no way to download the software security
patch to repair the glitch in the ship’s computer, the port
authority advised the master of MV Leemar, Captain Ida
Tazia, to leave the remaining 2000 tonnes of plywood on
the dock, arrange it to be warehoused at the port, and then
proceed with whatever that was loaded on board of the
On 4 january 2013, Captain Ida Tazia heeded the port
authority’s advice and set the ship on a voyage to
Singapore. Whilst sailing right in the middle of South
China Sea, the mV Leemar received the following radio
transmission: “mayday mayday. SOS from the MT Dijay
Tamhar/. We have lost our engines. Floating with the
current 30 nautical miles south of the Spratly Islands”.
Upon receiving the message, Captain Ida Tazia ordered MV
Leemar to deviate from its chartered route and instead
head northwards towards the Spratly Islands. About 3
hours later, the MV Leemar made contact with the MT
Dijay Tamhar. Captain Ida Tazia refused to tow the MT
Dijay Tamhar as the MV Leemar did not have the engine
capacity for that type of salvage work. Instead, only the
crew of the MT Dijay Tamhar were allowed on board.
After collecting the crew from the vessel in distress, the MV
Leemar headed to Port of Bangkok and dropped the crew
from the MT Dijay Tamhar then the ship headed
southwards towards Singapore.
Just off the coast of Kuantan, Malaysia, a fire was
detected on board the MV Leemar. Captain Ida Tazia
attempted to put out the fire by engaging the inert gas
suppression system, but this was not effective in putting
out fire. Finally, the first mate Haifa’ah managed to put
out the fire by using a traditional hose and water fire
The MV Leemar arrived at Singapore on 6 january 2013
and discharged her cargo.
Advise SVO of its rights, obligations, and liabilities
under the terms of the charterparty.
Issue : whether deviation made by Captain Ida Tazia
amounted to infringement to the Rules and breach of
contract of carriage?
1) General rule : a ship/carrier shall not deviate from its
ordinary or customary routes.
2) the Hague Rules – Article IV Rule 4
3) Carriage of Goods by Sea Act 1950-section 4
1) Davis v Garrett (general rule)
2) Scaramanga v Stamp