Author(s)

Lin Yang ¹

Affiliation(s)

¹ School of Humanities and International Education Xi'an Peihua University, Xi'an, Shaanxi 710125, China

Corresponding Author

Lin Yang

ABSTRACT

The deviation rule in shipping law cannot be ignored as it deeply affects the obligation of the carrier. In this essay, before comparing the two regimes that are the Hague-Visby Rules(HVR) and the common law, the factors affecting the comparison are discussed one by one, such as how to determine the reasonable deviation and the criteria for its determination. The study finds that the interpretation of the "reasonable deviation" is attributable to factual issues. Since the range of reasonable deviation is very broad, in determining whether it is a "reasonable deviation", the factors to be considered are the time of deviation and the distance, the nature of the deviation and interpretation with Art IV,2(1) under HVR. After solving the previous question, it attempts to compare the stipulation of deviation rule under the two regimes. From the comparison of the doctrine of the justified deviation, it is found that although the common law regime may change the scope of justified deviation by adding the liberty clause, it cannot be compared with the HVR regime, in terms of rationality and broadness. In addition, it defines the "proper course" and the meaning of "voluntariness" before comparing the effect of the unjustified deviation on the carrier. The carrier has more rights under the HVR than the common law. For example, the carrier may use Article IV, rule 5(a) and Article III, rule 8 as the defense. Both of these terms have alleviated the responsibility of the carrier to a certain extent. Finally, based on the above findings, it is concluded that the HVR is more suitable for the carrier than the common law for the deviation rule. Based on this conclusion, the suggestion is that both parties to the contract may include the "paramount clause" in the contract, so that the contract may apply the provisions of the HVR.

KEYWORDS

Deviation Rule, Justified Deviation, Unjustified Deviation, Paramount Clause

CITE THIS PAPER

Lin Yang, Deviation Rule under the Common Law and the Hague-Visby Rules. Journal of Sociology and Ethnology (2022) Vol. 4: 20-29. DOI: http://dx.doi.org/10.23977/jsoce.2022.040506.

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