초록 열기/닫기 버튼
Under common law, the shipowner is under an implied obligation to carry the cargo to the agreed destination directly without any deviation. The implied obligation of not to deviate is regarded as a condition of the contract and deviations are regarded as the fundamental breach of contract. But in certain circumstances at common law, departure from the proper route is permissible. The two main situations are deviating to save human life and for the purpose of avoiding danger to the ship or cargo. The deviate for the purpose of saving life is always justifiable. However, the deviate for the purpose of saving property only is not justifiable. The danger to the vessel or cargo may include natural causes, such as storms, ice, or flog, or political, such as the outbreak of war or the fear of capture by hostile forces. Whereas Korean Commerical Code allows the carrier to deviate for the purpose of saving life and property only. Considering the risks in the carriage of goods by sea, this regulation permits the carrier to deviate within the narrow scope. And Korean Commerical Code does not regulate on the effect of unjustifiable deviation. Therefore it is necessary to have various regulations on justifiable deviation and the effect of unjustifiable deviation like common law. The standard of justifiable deviation must be considered all terms and conditions existing at the time of deviation and the terms in the contract plus the causes above mentioned and must be decided. I would like to present the standard on justifiable deviation as follow. First, is the deviation happened expressly acknowledged in the contract? Second, if it not acknowledged in the contract, is it permitted in the commercial customs? Third, even if it is not allowed in the commercial customs, is it reasonable? Forth, if it is not reasonable, does not the voyage compulsively cease owing to causes by perils on the sea, acts of gods, arrest or restraint of princes, war and etc.? If there is a negative answer on above questions, I think, the deviation is unjustifiable and the shipowner and carrier are responsible for unjustifiable deviation. On the other hand, even if there are deviation clauses in the voyage charterparty or Bill of Lading, deviating is not allowed unconditionally but permitted within the scope of justifiable deviation.
Under common law, the shipowner is under an implied obligation to carry the cargo to the agreed destination directly without any deviation. The implied obligation of not to deviate is regarded as a condition of the contract and deviations are regarded as the fundamental breach of contract. But in certain circumstances at common law, departure from the proper route is permissible. The two main situations are deviating to save human life and for the purpose of avoiding danger to the ship or cargo. The deviate for the purpose of saving life is always justifiable. However, the deviate for the purpose of saving property only is not justifiable. The danger to the vessel or cargo may include natural causes, such as storms, ice, or flog, or political, such as the outbreak of war or the fear of capture by hostile forces. Whereas Korean Commerical Code allows the carrier to deviate for the purpose of saving life and property only. Considering the risks in the carriage of goods by sea, this regulation permits the carrier to deviate within the narrow scope. And Korean Commerical Code does not regulate on the effect of unjustifiable deviation. Therefore it is necessary to have various regulations on justifiable deviation and the effect of unjustifiable deviation like common law. The standard of justifiable deviation must be considered all terms and conditions existing at the time of deviation and the terms in the contract plus the causes above mentioned and must be decided. I would like to present the standard on justifiable deviation as follow. First, is the deviation happened expressly acknowledged in the contract? Second, if it not acknowledged in the contract, is it permitted in the commercial customs? Third, even if it is not allowed in the commercial customs, is it reasonable? Forth, if it is not reasonable, does not the voyage compulsively cease owing to causes by perils on the sea, acts of gods, arrest or restraint of princes, war and etc.? If there is a negative answer on above questions, I think, the deviation is unjustifiable and the shipowner and carrier are responsible for unjustifiable deviation. On the other hand, even if there are deviation clauses in the voyage charterparty or Bill of Lading, deviating is not allowed unconditionally but permitted within the scope of justifiable deviation.
