88. Frenkel v Macandrews & Co. Ltd [1929] 33 Ll.l Rep 191

Bill of lading – agreed route – deviation clause

The facts

Olive oil was shipped from Malaga to Liverpool under a bill of lading with a widely drafted clause granting the shipowner liberty to deviate from the “route”.

The ship proceeded upon a circuitous route during which the ship encountered heavy weather which led to the damage of the casks and loss of the oil.

The shipper relied on two well known deviation cases, Leduc v Ward and Glynn v Margetson. The effect of these cases was that, no matter how widely worded a liberty clause, there was a limit to the ship’s freedom to choose any course unrelated to the expectations of the parties, which was normally, a more or less straight route between two destinations.

Extrinsic evidence was led to prove that the route which the vessel took was one of two customary routes adopted by the line operated by the owner. The route in question had been notified in the bill of lading. The customary routes were also known to the shipper’s agents in Spain where the bill of lading had been issued.

Findings

The court of the first instance (Rowlatt J) found that there had been a deviation for which the ship was liable.

The Court of Appeal held that there were in fact two enquiries: firstly to identify the route and then to interpret the deviation clause. If the ship was on the route agreed upon and as defined, there was no need to proceed to the second enquiry, namely, the interpretation of the deviation clause.

The Court of Appeal held that the ship was on its normal route as adumbrated by extrinsic evidence and that there was no need to enter upon the second enquiry. This finding was upheld by the House of Lords.

Commentary

This case is important because the speeches of Lords Buckmaster and Warrington explicitly treat the bill of lading as a contract in its own right and not merely evidence of its terms, this leading to the application of the parol evidence rule with full rigour.

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