Provide three examples where there could be reasonable
deviation under the Hague Rules as applicable in
Malaysia under the...
 Article IV Rule 4 of the Hague Rules :
“ Any deviation in saving or attempting to save life or property
at sea or any re...
 General rule : a sea carrier (ship) shall not deviate from its
usual and customary route.
 Davis v Garrett (1830) 6 Bin...
 Reasonable deviation had received a very strict
interpretation.
 The heads provided in the Rule, “deviation is saving o...
Scaramanga v Stamp (1880) 5 CPD 295 CA
Facts: The Olympias chartered to carry cargo (wheat) from
Cronstadt to Gibraltar. O...
Phelps, James & Co v. Hill [1891] QB 605 CA
Facts : the ship carried tin and iron plates from Swansea to
New York. During ...
Kish v Taylor [1912] AC 604 HL
Facts : The Wearside (the ship) was chartered to load a full
and complete cargo of timber. ...
Shazanah Vessel Ownership Sdn Bhd (SVO) was the
registered owner of the Malaysian flagged general cargo
vessel, the M.V. L...
On 3 January 2013, the MV Leemar arrived and docked at
Kota Kinabalu Port. Loading commenced an hour later at 9
am. After ...
 As there was no way to download the software security
patch to repair the glitch in the ship’s computer, the port
author...
 Upon receiving the message, Captain Ida Tazia ordered MV
Leemar to deviate from its chartered route and instead
head nor...
Just off the coast of Kuantan, Malaysia, a fire was
detected on board the MV Leemar. Captain Ida Tazia
attempted to put ou...
Issue : whether deviation made by Captain Ida Tazia
amounted to infringement to the Rules and breach of
contract of carria...
Cases :
1) Davis v Garrett (general rule)
2) Scaramanga v Stamp
Deviation of ship
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Deviation of ship

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Deviation of ship

  1. 1. 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.
  2. 2.  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.”
  3. 3.  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 Plea 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.”
  4. 4.  Reasonable deviation had received a very strict interpretation.  The heads provided in the Rule, “deviation is saving or attempting to save .. Property at sea” and “any reasonable deviation.  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 charterer.
  5. 5. 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.
  6. 6. Phelps, James & Co v. Hill [1891] 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.
  7. 7. Kish v Taylor [1912] 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.
  8. 8. 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 plywood.
  9. 9. 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.
  10. 10.  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 ship.  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”.
  11. 11.  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.
  12. 12. 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 fighting system. 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.
  13. 13. Issue : whether deviation made by Captain Ida Tazia amounted to infringement to the Rules and breach of contract of carriage? Law : 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
  14. 14. Cases : 1) Davis v Garrett (general rule) 2) Scaramanga v Stamp

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