Report No. 21
7. Deviation for saving property.-
Another topic on which we have departed from the English law has reference to "deviation". Where a ship deviates from the voyage contemplated by the policy, the insurer is discharged from liability under the policy from the time of deviation (section 46, English Act). But the law recognises certain lawful excuses for such deviation, one of which under the English law is that it is for the purpose of saving human life [section 49(1)(e), English Act]. When the deviation is for saving property and not human life, it is not excused, and the insurer is discharged. That is the law also in America.1
It should be noted that the position is different when the question arises between the cargo-owner and the ship-owner under a contract of affreightment. According to the (English) Carriage of Goods by Sea Act, 1924, Schedule, Article IV, para. 4, a deviation in saving or attempting to save life or property at sea or any reasonable deviation is excused. And the Indian Carriage of Goods by Sea Act, 1925, Schedule, Article IV, para. 4, has also enacted the law in the same terms. The question is whether two different rules should apply as regards lawfulness of deviation, one as between the insurer and the assured, and the other as between the cargo-owner and the ship-owner.
The rule enacted in the (English) Marine Insurance Act, 1906, is based on common law2 and that has been departed from as regards contracts of affreightment in 1924. We think that there is no good ground for applying two different rules between marine insurance contracts and contracts of affreightment, and we have therefore adopted the law3 as enacted in the Indian Carriage of Goods by Sea Act, as more equitable, and accordingly substituted a provision excusing deviation for the purpose of saving or attempting to save life or property at sea. We, however, consider that "other reasonable deviation" (allowed in the Carriage of Goods by Sea Act), is too wide in its terms to be adopted for purposes of insurance.
1. Vide 45 Corpus Juris Secundum, "Insurance", p. 570, para. 653, right hand column.
2. Scaramanga v. Stamp, (1880) 5 CBD 295 CA on appeal from 4 CBD, 31G(q). See also Halsbury, 3rd Edn., Vol. 22, p. 73, para. 138 footnote.
3. See App. I, clause 50.