THE THEORY OF CONTRACT AND THE DOCTRINE OF DEVIATION

The doctrine of deviation in the carriage of goods by sea has often been treated as a particular and critical breach. The seriousness of the fault and the harshness of its consequences have been explained to compensate the balance power between the shipowner and the cargo owner due to the defenseless of the latter after his goods are shipped.

Deviating (or stranding from the agreed course) would not only increase the risk of the venture, but it would create a new endeavor, fulminating the original contract and “creating a new one without the knowledge and acquiescence of the cargo owner”. However, under the theory of the contract, one could not benefit from his own wrongs (and bringing the contract to an end could benefit the faulty party), and one cannot be bound by an agreement that he did not agree with.

Those matters were always analyzed in courts’ judgments in cases of deviation and subject to the scrutiny of academic articles: deviation was sometimes a body of authority sui generis and sometimes subject to the principles of the contract.

The purpose of this book is demonstrating that the doctrine of deviation and the contract law have evolved, and it is not certain anymore that the concept of an unreasonable deviation could be considered a body of authority sui generis. The precedents and the steps that a shipowner can take to void the consequences of a deviation can make the contract law absorb the doctrine of deviation.

The first two chapters of this book are about the theory of the contract and presents its essential terms and obligations and the contract of bailment that is going to spring after a deviation. The following chapter points to the terms of a contract that are relevant for categorizing and deciding the consequences of a deviation. The third chapter displays the definition of deviation, and the first cases, stressing the irrelevance of a proximate cause to the consequences of a breach of a term in a contract. The next two chapters analyze the requirements and the consequences of a deviation. The sixth chapter is about the Hague-Visby rules and their application to the doctrine of deviation, followed by a chapter discussing quasi-deviation cases and the conclusion.