‘PERIL OF SEA’ DEFENSE DEPENDS ON NATURE OF LOSS

“Peril of the sea” is one of 16 specifically excepted causes of cargo damage for which ocean carriers are not liable under the Carriage of Goods by Sea Act (Cogsa). This peril has been defined as a fortuitous action of the elements at sea, of such force as to overcome the strength of well-found ships or the usual precautions of good seamanship.

The validity of the peril of the sea defense depends on the nature and cause of the cargo loss. Negligence or fault on the part of the ocean carrier voids the defense.

In considering whether a storn was sufficiently severe to be a peril, courts first evaluate the winds encountered by a vessel on a Beaufort scale. This wind force scale ranges from calm (force 0) to 71 knots (force 12) and above. Courts have regularly found that winds up to force 11 (56 knots) are not perils of the sea.

The other factors considered in a perils case are: the effect of the storm on the vessel (rolling and pitching), damage to the vessel and other cargoes, forseeability of the storm when the ship set sail, storm’s location, cross-sea conditions vessel’s speed and course changes, and cargo losses experienced by other vessels in the same area.

Under Cogsa, there is a 17th exception which relieves ocean carriers from cargo liability for any cause arising without the actual fault of the carrier or its agents. This exception is known as the “Q Clause” and serves as a catch-all defense for situations, which may not fit under the sixteen other Cogsa exceptions.

The Q Clause defense is considered to be the most demanding in maritime law. The defense requires that the ocean carrier prove it was free from any fault that relates to cargo damages. In order to demonstrate freedom from fault, the ocean carrier must also prove what caused the cargo damage.

Until the recent Calavan Foods case (Appeal No. 4649), in the San Francisco Superior Court of Appeals, there were no court decisions which held that a Q Clause defense could be sustained in moderate weather conditions. It was the belief of many admiralty lawyers that cargo damage caused by non-perilous seats fault or negligence of the ocean carrier.

In the Calavan Foods case, cargo damage was sustained when a vessel unexpectedly encountered a typhoon on a voyage from Hong Kong to San Francisco. The trial court found for the cargo owner holding that the winds encountered by the vessel (47 knots) did not constitute a peril of the sea.

The appeals court reversed, holding that even though the typhoon was not a peril of the sea, the shipowner had established the elements of a Q Clause defense: (1) the vessel was free from fault (the carrier took all reasonable steps to safeguard the cargo) and (2) the actual cause of the cargo damage was the storm (the unpredicted change of course of the typhoon).

This decision may have an impact on future cargo claims by demonstrating that even though weather conditions are not severe enough to provide an absolute peril of the sea defense, the storm may still serve as an explanation for the cause of the cargo damage under the Q Clause. Vessel interest will still have to prove that it attempted to avoid the storm and properly stowed and cared for the cargo. However, as the Calavan Foods case demonstrates, this may not be an insurmountable obstacle.


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