A charterparty may provide for a particular route to be followed or under a time charterparty the time charterer may give express instructions as to the route. If there is a contractually agreed route, the shipowner must follow that route unless an exception applies. If there is no contractually agreed route it is presumed that the contractual route is the direct geographical route, unless the owner can prove that there is a customary route.
Many charterparties contain an express liberty to deviate. Such a clause will be interpreted restrictively against the owner. If the charterparty incorporates the Hague or Hague–Visby Rules Article IV rule 4 of both sets of Rules provides that the carrier shall not be liable for any loss or damage resulting from any deviation in saving or attempting to save life or property or any reasonable deviation. The Rules do not permit the owner to contract out of the minimum obligations imposed by the Rules, and where there is both a wide express liberty clause and the Rules apply, the question arises whether the liberty clause is an attempt to lessen the owner’s obligations and thus void, or defines the scope of the owner’s obligations in which case it is valid. The latter interpretation seems likely.
If there is no express liberty clause and the Rules do not apply to the charterparty, the owner can rely on the justifications for deviation at common law. These are narrower than those under the Rules and cover deviation to save human life or to communicate with a ship in distress where there is a risk of loss of life (but not for the sole purpose of saving property); to avoid danger to the ship or her cargo, even if the danger was caused by the vessel being unseaworthy when she went to sea; or where deviation is necessary due to the fault of the charterer.
Unjustified deviation is a fundamental breach of contract and the charterer has the right to elect to terminate or affirm the contract. The breach was treated at common law as of such a serious character as to go to the root of the contract and, if the charterer elected to terminate the contract, the owner could no longer rely on any of its terms, including any exception clauses. This is the doctrine of fundamental breach.
Where the Hague or Hague–Visby Rules apply to the charterparty, the time bar will probably still apply even if the owner has deviated and the owner can rely on the limits of liability, although it may be possible to break those limits where the Hague Visby Rules apply.
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