Is Deviation a Fundamental Breach of the Contract of Carriage by Sea? A Critical Analysis of Current Law

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Ndi, George (2013) Is Deviation a Fundamental Breach of the Contract of Carriage by Sea? A Critical Analysis of Current Law. In: International Conference on Law & Justice, 24th - 25th June 2013, Colombo, Sri Lanka.

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Abstract

The main objective of this paper is to critically assess the current status of the legal regime governing the international carriage of goods by sea, with the main focus being on the implied terms which form the foundation of international shipping law in general, and on the doctrine of deviation in particular. This will include a critical review of the rule against unjustified deviation in contracts of affreightment by posing the following questions: (i) Is the rule against unjustified deviation still relevant in the modern context of international carriage of goods by sea? In light of: The development of transport vessels, liberty clauses, different types of charterparties, and held cover clauses? (ii) Should the rule against unjustified deviation be treated any differently from other implied shipping terms? Is the rule against deviation an absolute obligation? Should unjustified deviation amount to fundamental breach of a contract? Should there not be some degree of flexibility in the judicial approach to the law on deviation? (iii) Do we need harmonisation, unification and interpretation of deviation rules? It is hoped that in attempting to answer these questions some light may be shed on this important area of shipping law.

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