The Voyage: Deviation and Delay

In one line

Sections 44 to 51 are one scheme, and deviation is only one of five ways in which a voyage can go wrong.

In the wording a student can write in an exam: sections 44 to 51 of the Marine Insurance Act, 1963 govern the conduct of the adventure under a voyage policy: section 44 requires it to be commenced within a reasonable time, sections 45 and 46 provide that the risk does not attach if the ship sails from a different place or for a different destination, section 47 discharges the insurer on a change of voyage, section 48 discharges it on deviation, section 50 discharges it on unreasonable delay, and section 51 sets out the seven excuses with a duty to resume.

The scheme, and why it must be given as a scheme

A question about deviation is a question about all eight sections. The examiner wants to see that the candidate knows deviation is one of five failures, each with its own consequence, and that the consequences differ in an important way.

Notice the three different consequences. Under sections 45 and 46 no cover ever begins, so the premium is returnable for total failure of consideration under section 84. Under section 44 the insurer has an election to avoid. Under sections 47, 48 and 50 the insurer is discharged from a moment, and losses before that moment are payable.

Commencement: section 44

Section 44(1) provides that where the subject matter is insured by a voyage policy "at and from" or "from" a particular place, it is not necessary that the ship should be at that place when the contract is concluded, but there is an implied condition that the adventure shall be commenced within a reasonable time, and that if it be not so commenced the insurer may avoid the contract.

Section 44(2) provides that the implied condition may be negatived by showing that the delay was caused by circumstances known to the insurer before the contract was concluded, or that he waived the condition.