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Bluebook 21st ed.

Harry Apostolakopoulos, Navigating in Perilous Waters: Examining the Peril of the Sea
Exception to Carrier's Liability under COGSA for Cargo Loss Resulting from Severe
Weather Conditions, 41 S. TEX. L. REV. 1439 (2000).

ALWD 7th ed.

Harry Apostolakopoulos, Navigating in Perilous Waters: Examining the Peril of the Sea
Exception to Carrier's Liability under COGSA for Cargo Loss Resulting from Severe
Weather Conditions, 41 S. Tex. L. Rev. 1439 (2000).

APA 7th ed.

Apostolakopoulos, H. (2000). Navigating in perilous waters: examining the peril of
the sea exception to carrier's liability under cogsa for cargo loss resulting from
severe weather conditions. South Texas Law Review, 41(4), 1439-1456.

Chicago 17th ed.

Harry Apostolakopoulos, "Navigating in Perilous Waters: Examining the Peril of the
Sea Exception to Carrier's Liability under COGSA for Cargo Loss Resulting from Severe
Weather Conditions," South Texas Law Review 41, no. 4 (Fall 2000): 1439-1456

McGill Guide 9th ed.

Harry Apostolakopoulos, "Navigating in Perilous Waters: Examining the Peril of the
Sea Exception to Carrier's Liability under COGSA for Cargo Loss Resulting from Severe
Weather Conditions" (2000) 41:4 S Tex L Rev 1439.

AGLC 4th ed.

Harry Apostolakopoulos, 'Navigating in Perilous Waters: Examining the Peril of the
Sea Exception to Carrier's Liability under COGSA for Cargo Loss Resulting from Severe
Weather Conditions' (2000) 41(4) South Texas Law Review 1439

MLA 9th ed.

Apostolakopoulos, Harry. "Navigating in Perilous Waters: Examining the Peril of the
Sea Exception to Carrier's Liability under COGSA for Cargo Loss Resulting from Severe
Weather Conditions." South Texas Law Review, vol. 41, no. 4, Fall 2000, pp.
1439-1456. HeinOnline.

OSCOLA 4th ed.

Harry Apostolakopoulos, 'Navigating in Perilous Waters: Examining the Peril of the
Sea Exception to Carrier's Liability under COGSA for Cargo Loss Resulting from Severe
Weather Conditions' (2000) 41 S Tex L Rev 1439 Please note:
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 NAVIGATING IN PERILOUS WATERS:
EXAMINING THE "PERIL OF THE SEA"
EXCEPTION TO CARRIER'S LIABILITY UNDER
COGSA FOR CARGO LOSS RESULTING FROM
SEVERE WEATHER CONDITIONS

I. INTRODU CTION .......................................................................... 1439

II. AN EXAMINATION OF EXISTING JURISPRUDENCE ............... 1442
A. The United States' Approach ............................................. 1442
1. The Supreme Court's View ........................................... 1442
2. The Definitions Offered by the Circuit and District
Courts ............................................................................. 1443
B. ForeignApproaches............................................................ 1448
III. POLICY REASONS FAVORING THE ADOPTION OF A
FORESEEABILITY TEST ............................................................. 1451
A. TechnologicalAdvances Have Greatly Reduced
Vessels' Exposure to Unforeseeable Storms by Allowing
Accurate W eather Forecasts............................................... 1452
B. Eliminatingthe ForeseeabilityRequirement Will Not
Promote Uniformity of Maritime Law .............................. 1453
C. NationalCommercial Interests Mandate the Use of the
ForeseeabilityTest ............................................................... 1454
IV. CONSIDERING A NEW TEST AND ITS APPLICABILITY TO
M ARITIM E C ASES ...................................................................... 1455
V . C ONCLU SIO N .............................................................................. 1456

I. INTRODUCTION

For many years, disputes over cargo loss were being decided
pursuant to the bill of lading-the maritime contract of carriage-
provisions! A compromise between shipowners and cargo interests
precipitated the enactment of the Hague Rules in 1924,2 an
international agreement dealing with cargo liability issues The Visby

1. See Robert Force, A Comparison of the Hague, Hague-Visby, and Hamburg

Rules: Much Ado About (?), 70 TUL. L. REV. 2051, 2052 (1996).
2. International Convention for the Unification of Certain Rules of Law Relating to
Bills of Lading, Aug. 25, 1924, 120 L.N.T.S 155 [hereinafter Hague Rules].
3. See Michael F. Sturley, The History of COGSA and the Hague Rules, 22 J. MAR.

1439
1440 SOUTH TEXAS LA W REVIEW [Vol. 41:1439

Amendments4 to the Hague Rules were promulgated in 1968, and are

applicable in some countries as the Hague-Visby Rules The United
States subscribed to the Hague Rules in 1937, more than one year
after enacting the Carriageof Goods by Sea Act (COGSA) 6 in 1936,
its own version of the Hague Rules, whose terms were substantially
(although not entirely) the same as those of the latter.
Section 4(2)(c) of the COGSA absolves carriers from liability for
cargo damage that is caused by a "peril of the sea."8 However, the
statute does not define what constitutes a "peril of the sea" and a
workable definition has remained elusive ever since COGSA's
enactment in 1936. 9 According to Professor Tetley, the definition of a
"peril of the sea" articulated in the case of The Rosalia ° influenced
American courts for a long time." According to this definition, a
"peril of the sea". "means something so catastrophic as to triumph
over those safeguards by which skillful and vigilant seamen usually
bring ship and cargo to port in safety." 12
"[A] peril of the sea may [also] be defined as some catastrophic
force or event that would not be expected in the area of the [ship's]
voyage at that [particular] time of the year and that could not
reasonably be guarded against."13 Relevant factors include the
strength of the wind, the nature and extent of damage to the ship

L. & COM. 1, 4 (1991).

4. See Force, supra note 1, at 2052 (citing Protocol to Amend the International
Convention for the Unification of Certain Rules Relating to Bills of Lading, Brussels, Feb.
23, 1968, 2 U.N. Register of Texts ch. 2, at 180, reprintedin 6 BENEDICT ON ADMIRALTY,
at Doc. 1-2m at 1-25 (Micheal M. Cohen et al. eds., 7th ed. rev. 1993)).
5. See id. at 2052.
6. 46 U.S.C. app. §§ 1300-15 (1994).
7. See NICHOLAS J. HEALY & DAVID J. SHARPE, CASES AND MATERIALS ON
ADMIRALTY 331 (2d ed. 1986).
8. See 46 U.S.C. app. § 1304 (2)(c) (1994) (providing, in pertinent part, that
"[n]either the carrier nor the ship shall be responsible for loss or damage arising or
resulting from... [p]erils, dangers, and accidents of the sea or other navigable
waters...").
9. The Hague Rules do not-define "peril of the sea" either; article 4.2 of the Hague
Rules reads in pertinent part: "Neither the carrier nor the ship shall be responsible for loss
or damage arising or resulting from ... [p]erils, dangers, and accidents of the sea or other
navigable waters." 120 L.N.T.S. 165, 167 (1931). However, article 4.2 has been interpreted
to mean that the carrier will not usually be successful in asserting the defense without
showing that what caused the loss could not have been anticipated by the exercise of
reasonable prudence. See Force, supra note 1, at 2067-68.
10. 264 F. 285,288 (2d Cir. 1920).
11. See WILLIAM TETLEY, MARINE CARGO CLAIMS 431 (3d ed. 1988).
12. The Rosalia,264 F. at 288.
13. TETLEY, supranote 11, at 432.
2000] "PERIL OF THE SEA" EXCEPTION TO COGSA 1441

caused by the storm and the extent of cross-seas." Many courts have
based their ultimate conclusions on whether the weather conditions
were foreseeable given the location and the time of year where the
ship encountered the severe weather."
The "peril of the sea" defense originally places the burden of
proof on the carrier who is attempting to escape liability for cargo loss
that occurred as a result of the vessel's exposure to severe weather at
sea.' 6 Given the increased predictability of storms due to technological
advances, many courts have been increasingly reluctant to accept this
defense in cases where the loss occurred after the vessel encountered
severe weather that was foreseeable and expected." On the other
hand, some courts have looked at other factors besides foreseeability
when deciding whether a carrier is entitled to a "peril of the sea"
defense."
This comment articulates an expanded test for what constitutes a
"peril of the sea" where cargo loss results from severe weather. Part
II.A examines the evolution of pertinent case law over the past 105
years by comparing and contrasting the approaches of the Supreme
Court and the lower courts. Part II.A attempts to harmonize these
decisions and extract the common notions that come from these cases
to form the "peril of the sea" concept. Part II.B employs a
comparative analysis by examining the case law and statutory
enactments of the major maritime nations, aiming at identifying the
underlying concerns of foreign judges and legislators. Part III
discusses the policy reasons that justify the application of a
foreseeability test. Finally, Part IV outlines a test that can be used by
the courts in a predictable manner while maintaining the requisite
flexibility for varying factual situations.

14. See Thyssen, Inc. v. S/S Eurounity, 21 F.3d 533, 539 (2d Cir. 1994) (citing J.
Gerber & Co. v. S.S. Sabine Howaldt, 437 F.2d 580, 596 (2d Cir. 1971).
15. See, e.g., id. (concluding that the vessel was not entitled to a "peril of the sea"
defense because severe storms occur regularly in the North Atlantic and the wind and
cross-seas should have been expected).
16. See TETLEY, supra note 11, at 434.
17. See Force, supra note 1, at 2067-68 (stating that a carrier who was "negligent in
assessing conditions or in failing to take reasonable precautions against conditions" that
should have been expected cannot rely on a "peril of the sea" defense).
18. See, e.g., Taisho Marine & Fire Ins. Co. v. The MV Sea-Land Endurance, 815
F.2d 1270, 1272 (9th Cir. 1987) (looking at structural damage to the ship, the extent of
speed reduction, how far the vessel was blown off course, and the extent to which other
vessels experienced cargo loss).
1442 SOUTH TEXAS LA W REVIEW [Vol. 41:1439

II. AN EXAMINATION OF EXISTING JURISPRUDENCE

The courts of the United States and other major maritime nations
have frequently considered the question of how severe the weather
must be in order to constitute a "peril of the sea," thereby absolving a
carrier from liability;' 9 however, a consensus has not been achieved.

A. The United States' Approach

The overwhelming majority of American courts have employed a
foreseeability test when determining whether severe weather
conditions constitute a "peril of the sea."2 Under this test, severe
weather conditions must be unforeseeable or unexpected to the
carrier in order to constitute a "peril of the sea."'"

1. The Supreme Court's View

The Supreme Court had one of its first occasions to consider what
constitutes a "peril of the sea" in 1894.22 In Edwin L Morrison, a
schooner was carrying the plaintiff's cargo from Massachusetts to
Georgia when it encountered "very rough and tempestuous weather,
in consequence of which she shipped large quantities of water .. .
The crew had even prepared to "abandon the vessel, as she was
supposed to be sinking" before finally making it to Savannah.24 The
plaintiff brought suit after25 discovering that its cargo had suffered
extensive seawater damage.
The plaintiff prevailed in district court,26 but the Second Circuit
Court of Appeals reversed the district court's holding stating that the
loss resulted from a "peril of the sea., 27 However, the Supreme Court
held that no "peril of the sea" exists when the weather is expected by
the vessel and reversed the Second Circuit's decision, noting that the

19. See HEALY & SHARPE, supra note 7, at 378.

20. See Michael F. Sturley, An Overview of the ConsiderationsInvolved in Handling
the Cargo Case, 21 TUL. MAR. L.J. 263, 311 (1997) (noting that American courts do not
find foreseeable risks to be "perils of the sea") (citing Thyssen, Inc. v. S.S. Eurounity, 21
F.3d 533, 539 (2d Cir. 1994) (denying the "peril of the sea" defense because the weather
that was encountered was not unusual)).
21. See id.
22. See The Edwin I. Morrison, 153 U.S. 199 (1894).
23. Id. at 200. The seawater intake presumably resulted from the loss of the cap and
plate covering a bilge-pump hole. See id. at 210.
24. See id. at 206 n.13.
25. See id. at 199-200.
26. See id. at 200.
27. See Bradley Fertilizer Co. v. The Edwin I. Morrison, 40 F. 501, 506 (1889).
2000] "PERIL OF THE SEA" EXCEPTION TO COGSA 1443

facts did not show that "the severity of the weather encountered by
the [Edwin L] Morrison was anything more than was to be expected
upon a voyage, such as this, down that coast and in the winter
season.. ••.. "2829 Significantly,
stCG this holding was quoted in The
Schickshinny, a post-COGSA case where the court held that where
the weather the vessel encounters is no more severe than expected at
that location (the North Atlantic), the vessel cannot plead a "peril of
the sea" defense for cargo damage caused by the weather. 0
The fact that Bradley was decided before COGSA's enactment is
inconsequential to its applicability to present-day cases because
COGSA does not define what a "peril of the sea" is. Additionally,
because Congress has used the common law term "peril of the sea" in
COGSA, Congress is presumed to have used the phrase with all its
evolutionary possibilities under the common law; meaning that
Congress must have intended the statutory definition of the term to
mean the same thing as its common law interpretation. Moreover,
because COGSA's purpose was to place limits on the reduction of
carriers' liability in cargo loss cases, it is logical that post-COGSA
cases should follow a rule that potentially limits the scope of carriers'
liability exemptions. Finally, Morrison is still applicable today
despite the fact that it is usually a container rather than the vessel's
hold which suffers damage in modern day cases. This is because the
container is the modern substitute of the vessel's hold.33

2. The Definitions Offered by the Circuit and District Courts

In Thyssen, Inc. v. S/S Eurounity, the shipper brought suit under
COGSA for seawater damage sustained by steel cargo the defendant's

28. Morrison, 153 U.S. at 211 (emphasis added).

29. 45 F. Supp. 813 (S.D. Ga. 1942).
30. See id. at 817 (citing Morrison, 153 U.S. at 211).
31. See Business Electronics Corp. v. Sharp Electronics Corp., 485 U.S. 717, 732
(1988) (holding that Congress was presumed to be familiar with and accept the common
law definition of the term "restraint of trade" when it enacted the Sherman Act) (citing
McNally v. United States, 483 U.S. 350, 372-73 (1987) (Stevens J., dissenting); Associated
General Contractors of California, Inc. v. Carpenters, 459 U.S. 519, 533 n.28, 539-40, n.43
(1983); Continental T.V. Inc. v. GTE Sylvania Inc., 433 U.S. 36, 53 n.21 (1977); Standard
Oil Co. v. United States, 221 U.S. 1, 51-60 (1911); R. BORK, THE ANTITRUST PARADOX
37 (1978)).
32. See Judith Anne Meyer, In Another Country: The Effect of Mandatory Port Law
Upon Statutory Duties of Discharge and Delivery-TAPCO Nigeria, Ltd. v. M/V
Westwind, 9 MAR. LAW 123, 124-25 (1984); see also Tessler Bros. Ltd. v. Italpacific Line,
494 F.2d 438, 444 (9th Cir. 1974) (acknowledging that COGSA was passed to counteract
the efforts of carriers to obtain all encompassing exceptions to liability).
33. See Northeast Marine Terminal Co. v. Caputo, 432 U.S. 249, 270 (1977).
1444 SOUTH TEXAS LAW REVIEW [Vol. 41:1439

vessel was transporting from Europe to the United States in January

of 1989.' During the transportation of the cargo across the North
Atlantic, the vessel encountered a severe storm that caused Beaufort
Scale35 winds between Beaufort Force 10 and 11 and waves between
10 and 11.5 meters in height36 in addition to chaotic cross-seas."
Indeed, "[t]his storm was classified as an 'ultra bomb' (extra-tropical
cyclone) because its central pressure plummeted sixty millibars in
twenty-four hours., 31 Seawater entered the cargohold through the
vessel's cargo hatches during the storm and damaged the cargo.3 9
Nevertheless, the court did not accept the defendant's claim that the
weather was so severe as to make the seawater entry into the hold
inevitable.' The Second Circuit found "nothing of an extraordinary
nature" or of an "irresistible force or overwhelming power" in the
weather conditions the vessel encountered." On the contrary, the
court found that these conditions were "not unusual" in the North
Atlantic in the wintertime, further stating that "[g]iven that severe
storms occur on a regular basis in the North Atlantic and that the
winds, waves and cross-seas experienced by the [v]essel were to be
expected, we conclude that the [viessel has not proven that it is
entitled to exoneration based on a peril of the sea." 2

34. See 21 F.3d 533,536 (2d Cir. 1994).

35. The Beaufort Scale is as follows:

Force Average Wind Velocity Wind Description

in Miles per Hour
0 0 calm
1 2 light air
2 5 light breeze
3 9 gentle breeze
4 14 moderate breeze
5 19 fresh breeze
6 24 strong breeze
7 30 moderate gale
8 37 fresh gale
9 44 strong gale
10 52 heavy gale
11 60 storm
12 -- hurricane
2A BENEDICT ON ADMIRALTY § 153 (7th ed. 1985).
36. One meter equals 3.28 feet. See RICHARD STEVENS BURINGTON, HANDBOOK
OF MATHEMATICAL TABLES AND FORMULAS 282 (3d ed. 1953).
37. See Thyssen, 21 F.3d at 536.
38. Id.
39. See id.
40. See id. at 539.
41. Id.
42. Id.
2000] "PERIL OF THE SEA" EXCEPTION TO COGSA 1445

Moreover, "[t]he determination of whether [severe] conditions

constitute a peril of the sea is wholly dependent on the facts of each
case and is not amenable to a general standard."43 However, "[c]ourts
also must be cognizant that their ultimate conclusions should turn on
whether the weather conditions were foreseeable, given the location
and time of the year."
Nevertheless, the Second Circuit's position has not always been
unequivocally in favor of strictly applying the foreseeability standard.
In the earlier case of J. Gerber & Co. v. S.S. Sabine Howaldt, the
Second Circuit's central inquiry when deciding whether a case falls
within the statutory purview of "peril of the sea," was into the
measure of the violence of the winds and tempestuousness of the sea.45
The court declared that the "generally accepted definition" of a "peril
of the sea" is "those perils which are peculiar to the sea, and which are
of an extraordinary nature or arise from irresistible force or
overwhelming power, and which cannot be guarded against by the
ordinary exertions of human skill and prudence."" 6
Additionally, the Second Circuit has interpreted the "peril of the
sea" defense to mean that the weather encountered must be too much
for a well-found vessel to withstand.47 However, this definition in no
way expressly does away with the requirement of unforeseeability that
is imposed by the "peril of the sea" defense.8 Moreover, the Second
Circuit came up with this definition at a time when ships did not have
access to accurate weather information, and the court could have been
more willing to sustain the "peril of the sea" defense because many
storms were indeed unforeseen because of the lack of instruments to
predict them. 9 Finally, even if some view this decision as relaxing the
standard for the "peril of the sea," defense, Thyssen (which is a later
case coming out of the same circuit court) leaves no doubt that the
Second Circuit's position is that foreseeability of the severe conditions
is the crux of the "peril of the sea" analysis."0

43. Id. (citing Duche v. Thomas & John Brocklebank, Ltd., 40 F.2d 418, 420 (2nd Cir.
1930); Kane Int'l Corp. v. M/V Hellenic Wave, 468 F. Supp. 1282 (2d Cir. 1979)).
44. Id.
45. 437 F.2d 580, 588 (2d Cir. 1971).
46. Id. (citing The Giulia, 218 F. 744, 746 (2d Cir. 1914)).
47. See Philippine Sugar Centrals Agency v. Kokusai Kisen Kabushiki Kaisha, 106
F.2d 32, 34 (2d Cir. 1939) (L. Hand, J.).
48. See id. ("True it was no more than was to be expected in those waters at that
time; but in some waters at some seasons, even hurricanes are not infrequent.").
49. See, e.g., Great China, 1999 A.M.C. 427, 513 (Austl.) (stating that technological
advances have greatly reduced the dangers of "perils of the sea").
50. See Thyssen, Inc. v. S/S Eurounity, 21 F.3d 533, 539 (2d Cir. 1994) (holding that
1446 SOUTH TEXAS LAW REVIEW [Vol. 41:1439

The Seventh Circuit has also adopted the foreseeability rule in

"peril of the sea" cases, and stated that "[i]f the storm encountered on
Lake Huron by the [steamship] 'Hilda' on November 25, 1950, was no
worse than was to be expected in view of the voyage and the season,
there was no exoneration from liability for the loss" which occurred
when the cargo was thrown overboard because of the vessel's severe
roll."
Five years later, in November of 1955, the same vessel carrying
the same shipper's cargo encountered very similar weather conditions
in Lake Erie unexpectedly because the vessel did not have the benefit
of prior weather reports. 2 The plaintiff-cargo owner sued for the
resulting cargo loss. 3 The Second Circuit held that the loss was not
due to a "peril of the sea" because the storm was not an unusual event
for Lake Erie in November, but rather it was one which could
reasonably be anticipated and provided against. 4
Similarly, according to the Fourth Circuit, "[t]he excepted peril of
the sea does not come into play merely upon proof that the vessel
encountered heavy seas and high winds, if the weather [which was]
encountered might reasonably have been anticipated and could have
been withstood by a seaworthy vessel."55 Under this interpretation,
sailing into a foreseeable storm would not sustain a "peril of the sea"
defense.
In the case of Waterman S.S. Corp. v. United States Smelting,
Refining & Mining Co., thirteen pieces of steel were lost overboard
due to severe weather the vessel encountered during the course of the
voyage from Baltimore to Seattle. 6 The Fifth Circuit held that
because the bad weather could have been foreseen as one of the
ordinary incidents of the voyage, it could not be considered a "peril of
the sea."57
On the other hand, the Ninth Circuit considers other factors and

the carrier was not entitled to immunity because the severe storm that was encountered
should have been expected).
51. R.T. Jones Lumber Co. v. Roen S.S. Co. (The Hilda I), 213 F.2d 370, 373 (7th Cir.
1954) (citing The Erskine M. Phelps, D.C., 231 F. 767 (N.D. Cal. 1915); The Arakan, D.C.,
11 F.2d 791 (S.D. Cal. 1926); Franklin Fire Ins., Co. v. Royal Mail Stream Packet Co., 58
F.2d 791 (2d Cir. 1932)).
52. See R.T. Jones Lumber Co. v. Roen S.S. Co. (The Hilda II), 270 F.2d 456, 457 (2d
Cir. 1957).
53. See id.
54. See id. at 459.
55. Artemis Maritime Co. v. Southwestern Sugar & Molasses Co. (The
Demosthenes), 189 F.2d 488, 491 (4th Cir. 1951).
56. 155 F.2d 687, 689 (5th Cir. 1946).
57. See id. at 693.
2000] "PERIL OF THE SEA" EXCEPTION TO COGSA 1447

does not afford foreseeability a dispositive role." Instead, every "peril

of the sea" must turn on its own particular facts.59 In Taisho Marine &
Fire Ins. Co. v. The MV Sea-Land Endurance, the Ninth Circuit
implicitly recognized that the multitude of weather factors such as the
velocity, direction, and duration of winds and cross-seas as well as the
characteristics of each individual ship make impossible the
establishment of a bright line rule that would invariably determine
what constitutes a "peril of the sea."''6 However, the court did not
articulate a different standard, but rather limited itself to advocating a
casuistic
61
approach of whether a "peril of the sea" exists in any given
case.
In sharp contrast stands the decision by the Southern District of
New York in the factually extraordinary case of In re Complaint of
Tecomar S.A., where a vessel carrying cargo from Germany to Mexico
disappeared in the North Atlantic sometime in February of 1987.62
The vessel experienced Beaufort Force 11 winds63 and Douglas Force
8 significant wave heights before disappearing. 6 The court held that
the carrier was liable for the cargo loss and stated that the test for
determining whether a storm constitutes a "peril of the sea" is
whether-in light of all the circumstances-the storm was
expectable.65
Similarly, in Palmer DistributingCorp., S.A. v. The S.S. American
Counselor, the plaintiff's cargo was damaged when the vessel
encountered rough seas and high winds reaching up to Beaufort Force
11' while travelling in the North Atlantic in November of 1952.6 The
court found that the weather conditions encountered by the vessel
were reasonably to be expected in a North Atlantic voyage in
November, and held that the damage to the cargo was not caused by a
"peril of the sea."'58 The same district court reached the same result in

58. See Taisho Marine & Fire Ins. Co. v. The MN Sea-Land Endurance, 815 F.2d
1270, 1272 (9th Cir. 1987).
59. See id.
60. See id. at 1272-73 (stating that case law fails to set out a bright line test, then
examining what factors have been looked at in the past).
61. See id. at 1272 (stating that each case depends upon its facts).
62. 765 F. Supp. 1150, 1153 (S.D.NY. 1991). The 27 crewmen that were on board
were presumed dead and the cargo worth $22 million was lost. See id.
63. See supra note 36.
64. See Tecomar, 765 F. Supp. at 1176.
65. See id. at 1178.
66. See The Beaufort Scale, supra note 36.
67. 158 F. Supp. 264,265 (S.D.N.Y 1957).
68. See id. at 266.
1448 SOUTH TEXAS LA W REVIEW [Vol. 41:1439

The City of Khios v. Ellerman & Bucknall S.S. Co.69

The district court for the Southern District of New York has
consistently reaffirmed its holding that there can be no "peril of the
sea" where the state of the sea and wind that caused the cargo loss
was reasonably expected at the place and time of year.70
Finally, some courts have held that where it is only cargo but not
the vessel that suffers damage, one may usually conclude that there
has been lack of care of the cargo, or improper stowage." In the case
of The Pennsylvania, the Ninth Circuit Court of Appeals decided a
case involving cargo that was damaged on board when the vessel
encountered rough seas in the North Pacific in the wintertime.72 The
court held that if hatches break or cargo breaks loose during such
conditions, it may be concluded that the vessel was not seaworthy and
there was no "peril of the sea" because gales and very rough seas are
to be expected in the North Atlantic at that time of the year."
Another court has held that no peril existed where 9-10 Beaufort
Force winds74 were sustained for three days and minor damage to the
vessel and one lifeboat was recorded.75 In conclusion, it appears that
American "courts do not find foreseeable weather risks to be perils of
the sea, for a seaworthy vessel should be able to withstand reasonably
expectable conditions."76

B. ForeignApproaches
The tribunals of the major maritime trading nations have also
struggled with the "peril of the sea" definition without attaining a

69. 16 F. Supp. 923,924 (S.D.N.Y. 1936).

70. See, e.g., New Rotterdam Ins. Co. v. S.S. Loppersum, 215 F. Supp. 563, 567
(S.D.N.Y. 1963) (finding no "peril of the sea" where the vessel's captain testified that the
severe weather which caused the cargo damage was expected).
71. See Nichimen Co. v. M.V. Farland, 333 F. Supp. 691, 697 (S.D.N.Y. 1971) (stating
that the defendants failed to show that the damage was not due to their own negligence
and there was testimony that there was negligence in stowage), modified on other grounds,
462 F.2d 319, 329 (2d Cir. 1972); Waterman S.S. Corp. v. United States Smelting, Refining
& Mining Co. (The West Kyska), 155 F.2d 687, 693 (5th Cir. 1946) (holding that the vessel
owner did not prove it was entitled to a "peril of the sea" defense because the weather that
was encountered was not unusual and that the court did not have to decide whether the
carrier was negligent in stowing the cargo).
72. 259 F.2d 458, 459 (9th Cir. 1957).
73. See id. at 461.
74. See The Beaufort Scale, supra note 36.
75. See Ore S.S. Corp. v. D/S A/S Hassel, 137 F.2d 326, 328 (2d Cir. 1943) (noting that
the circumstances indicated that the ship was not seaworthy).
76. Sturley, supra note 20, at 311 (citations omitted).
2000] "PERIL OF THE SEA" EXCEPTION TO COGSA 1449

77
consensus.
The Supreme Court of Canada held that a carrier relying on the
"peril of the sea" defense must prove that "the weather
encountered.., was of such a nature that the danger of damage to the
cargo arising from it could not have been foreseen .... Moreover,
the same court has held that to constitute a "peril of the sea," the
damage done to the cargo must be shown to have occurred as the
result of some peril which "could not have been foreseen or guarded
against as one of the probable incidents of the voyage. 79
Several French courts, including the Cour de Cassation (the
highest court of ordinary jurisdiction in France) have held that a peril
must be unforeseeable and insurmountable under the French
domestic Law of June 18, 1966.' 0 In another cargo case,
[t]he Cour d' Appel de Parisheld that the carrier was liable for half
the damage inflicted on the cargo in a violent storm (winds of
[Beaufort] force 10 [sic] and waves of 10 [sic] meters or more),
because the master, who was aware of the weather forecasts and who
should have foreseen the possible risks to the cargo, had nevertheless
decided to set sail. 81
The Commercial Court of the important Belgian port city of Antwerp
has held that
[w]here damage was caused when several tractors broke through their
lashes, the carrier could not rely on the defense of the peril merely
because the vessel encountered Beaufort force [nine] and [ten] winds
for several days, especially when such weather was to be expected
and the log showed that the tractors broke through their lashings as
soon as the wind reached force [ten], thereby indicating that they had
not been securely lashed in the first place. 82
The Greek Code of Private Maritime Law holds the carrier liable
for any damage to the cargo "unless the loss or damage is due to

77. See TETLEY, supra note 11, 435-43 (comparing the holdings of the courts of the
United States, Canada, the United Kingdom, France and various other jurisdictions).
78. Falconbridge Nickel Mines Ltd. v. Chimo Shipping Ltd., [1973], 2 Lloyd's Rep.
469, 473 (Can.) (emphasis added).
79. Charles Goodfellow Lumber Sales Ltd. v. Hovington Verreault [1971] 17
D.L.R.3d 56, 66 (Can.).
80. See COUR DE CASSATION, Dec. 15, 1974, DMF 1975, 142; TRIBUNAL DE
COMMERCE DE MARSEILLE, June 13, 1975, 688; CA Paris, June 4, 1975, DMF 1975, 539
(citations found in WILLIAM TETLEY, MARINE CARGO CLAIMS 440-41, nn.65-66 (3d ed.
1988)).
81. CA Paris, Jan. 12, 1984, DMF 1984, 413 (citations found in WILLIAM TETLEY,
MARINE CARGO CLAIMS 441 n.70 (3d ed. 1988)).
82. Tribunal de Commerce d' Anvers, May 7, 1975, JPD 1974-75, 479 (citations
found in WILLIAM TETLEY, MARINE CARGO CLAIMS 442 (3d ed. 1988)).
1450 SOUTH TEXAS LAW REVIEW [Vol. 41:1439

events which could not be avoided, even by exercise of the care of a

prudent carrier."8 3 This is particularly significant because Greece is a
major maritime country that has traditionally fostered shipping
trade.' Under the plain meaning of the statute, it appears that a
carrier who sails into a foreseen storm would be liable for cargo loss
(unless some other affirmative defense applies) because the storm can
be potentially avoided by changing course.
In England, courts have been more sympathetic to carriers and
English judges have traditionally relied on the landmark case of The85
Thames and Mersey Marine Ins. Co. v. Hamilton, Fraser & Co.,
where Lord MacNaghten stressed the importance of avoiding the
formulation of a rigid definition of a "peril of the sea" when he stated:
"I think that each case must be considered with reference to its own
circumstances, and that the circumstances of each case must be looked
at in a broad commonsense view... ,,86 While most English judges
have generally been reluctant to tie the "peril of the sea" defense to
foreseeability of the severe weather,87 some English courts have held
that foreseeability of the weather is a factor to be considered when
deciding a "peril of the sea" case.'
Predictably, Australian courts have followed the English
approach and have generally refrained from using too specific a
criterion for defining a "peril of the sea," relying more on a case-by-
case determination.89 In Great China, the vessel encountered heavy
weather during its passage across the Great Australian Bight 9° which

83. Greek Private Maritime Code [GMC] art. 134 (Greece).

84. The Greek merchant fleet stood "at 120 million [deadweight tons]" in 1994,
making it "the largest in the world." Greek Shipowners Pressfor Easing of Global Rules, J.
COM., Sept. 19, 1994, at 9-B.
85. [1887] 12 App. Cas. 484.
86. Id. at 502.
87. See, e.g., Thomas Wilson, Sons, & Co. v. The Xantho [1887] 12 App. Cas. 503, 509
(allowing room for a sunken rock, for example, to be a "peril of the sea"); Hamilton,
Fraser & Co. v. Pandorf & Co. [1887] 12 App. Cas. 518, 524 (holding that "perils of the
sea" means no more or less than in a bill of lading).
88. See W. Angliss & Co. v. P. & 0. Steam Navigation Co. [1927] 28 Lloyd's L. Rep.
202, 204 (noting that the weather which was encountered was to be expected); Spear &
Thorpe v. Bolivier [1931] 40 Lloyd's Rep. 13, 19 (acknowledging that the weather which
was encountered was not to be expected at that time of year); The Assunzione [1956] 2
Lloyd's L. Rep. 468, 470 (declaring that the weather which was encountered was to be
expected).
89. See The Shipping Corp. of India v. Gamlen Chemical Co., 147 C.L.R. 142, 165-66
(1980) (Austl.); Great China Metal Indus. Co. v. Malaysian Int. Shipping Corp. (1998),
1999 A.M.C. 427, 438-40 (Austl.) (discussing the difference between the American and
English interpretations of "the peril of the sea").
90. The body of water lying between the south coast of the Australian continent and
Antarctica.
2000] "PERIL OF THE SEA" EXCEPTION TO COGSA 1451

caused the loss of part of the cargo." The High Court of Australia
affirmed the lower court's decision absolving the carrier from liability
despite the fact that the storm the vessel encountered was
foreseeable. 9 The court reasoned that foreseeability alone does not
bar the "peril of the sea" defense, especially in cases where the storm
encountered is severe."
In retrospect, the jurisprudence of the "peril of the sea" defense
can be described as a spectrum where one end is defined by the North
American (United States-Canadian) approach barring the defense
where a foreseeable storm causes the damage.94 The other end is
occupied by the Anglo-Australian and Commonwealth approach
which denies foreseeability a determinative role,95 and the middle
ground which consists of intermediate approaches of major European
maritime nations.%

III. POLICY REASONS FAVORING THE ADOPTION OF A

FORESEEABILITY TEST

The conservation of American legal tradition raises a compelling

argument against challenges to established jurisprudence.97 Because
the foreseeability standard has been the determinative factor of a
"peril of the sea" defense for over a hundred years, there is a strong
presumption against its demise. Additionally, it is noteworthy that the
foreseeability requirement has been featured more prominently in
recent cases.98 At the time of the Hague Rules' enactment, weather
was still unpredictable to a great extent, and a totally unforeseeable
severe storm might be viewed as a "peril of the sea." ' However, this
is not the case today.

91. See Great China Metal Indus. Co., 1999 A.M.C. at 447.
92. See id. at 491.
93. See id. at 464.
94. See Sturley, supra note 20, at 311.
95. See id.
96. See TETLEY, supra note 11, at 442-43 (giving examples of other jurisdictions).
97. See Burnham v. Superior Court, 495 U.S. 604, 619 (1990) (holding that domestic
legal tradition has a powerful role in determining the proper basis for exercising personal
jurisdiction).
98. See, e.g., Great China Metal Indus. Co., 1999 A.M.C. at 513 (acknowledging that
the rules are designed to protect those ship owners who are not guilty of negligence).
99. See id. at 489 (observing that more reliable means of predicting the weather are
becoming available).
1452 SOUTH TEXAS LAW REVIEW [Vol. 41:1439

A. TechnologicalAdvances Have Greatly Reduced Vessels'

Exposure to UnforeseeableStorms by Allowing Accurate Weather
Forecasts
Technological advances have raised the threshold of what
constitutes a "peril of the sea." "0 The fact that the foreseeability
standard has been featured more prominently in relatively recent
cases underscores the fact that technological advances in weather
forecasting have enabled modern vessels to receive accurate weather
forecasts, and thereby avoid heavy weather."' At the time of the
Hague Rules' enactment, weather was still unpredictable to a great
extent, and a totally unforeseeable severe storm might be viewed as a
"peril of the sea.""'° Illustratively, Canadian jurisprudence has
abandoned the earlier standard articulated in Keystone Transports,
Ltd. v. Dominion Steel & Coal Corp. (The Keynor) ,10 that a "violent
action of winds and waves" that causes damage to the cargo
constitutes a "peril of the sea."" Canada's highest court has since
abandoned the holding of The Kenyor. In doing so, the court noted
that the same panel of judges that were responsible for The Kenyor
adopted a foreseeability standard less than a year later in Parrish&
Heimbecker Ltd. v. Burke Towing & Salvage Co." Current case law
in Canada states that the carrier attempting to be absolved from
liability must prove that the heavy weather encountered was of such a
nature that the arising danger of cargo damage was unforeseeable.""
The use of radars to access and constantly update meteorological
satellite data has significantly reduced exposure to natural perils."°

100. See id. at 513 (stating that technological advances have reduced exposures to
"perils of the sea").
101. See id.
102. See Force, supra note 1, at 2067-68 (noting that under the Hague Rules a peril
must be something that is unanticipated).
103. 1943 A.M.C. 371 (Can. 1942).
104. Id. at 381 (reasoning that the damage which occurred could not be attributed to
someone's negligence).
105. 1943 A.M.C. 388, 392 (Can. 1943) ("There must be some casualty, something
which could not be foreseen as one of the necessary incidents of the adventure.") (quoting
Thomas Wilson, Sons, & Co. v. The Xantho [1887] 12 App. Cas. 503, 509).
106. See, e.g., Bruck Mills Ltd. v. Black Sea Steamship Co. (The Grumant) [1973] 2
Lloyd's Rep. 531 (Can.) (holding a carrier liable where cargo damage is the result of
foreseeable storms); The Washington [1976] 2 Lloyd's Rep. 453 (Can.) (holding that the
"peril of the sea" defense fails where the carrier is unable to show that unforeseen weather
caused damage to cargo).
107. See Great China Metal Indus. Co. v. Malaysian Int. Shipping Corp. [19981, 1999
A.M.C. 427, 513 (Austl.) ("[A]dvances in shipbuilding technology, communications, and
navigational aids provide a means of significantly reducing exposure to perils of the
2000] "PERIL OF THE SEA" EXCEPTION TO COGSA 1453

Therefore, a storm which is almost certain to occur must not be

classified as a peril when the vessel had a reasonable opportunity to
avoid exposure, and a vessel that knowingly sails into such a storm
must not escape liability based on the "perils of the sea" defense."

B. Eliminating the ForeseeabilityRequirement Will Not Promote

Uniformity of Maritime Law
In Vimar Seguros y Reaseguros v. M/V Sky Reefer,"° the Supreme
Court considered the enforceability of foreign arbitration clauses
contained in maritime bills of lading."' Within this context, the
Supreme Court stressed the importance of international uniformity in
the interpretation of the Hague Rules" (upon which COGSA is
modeled) and declined "to interpret [the American] version of the
Hague Rules in a manner' 2
contrary to every other nation to have
addressed that issue."
Because the United States was the only country in the world
interpreting the enforceability of foreign arbitration clauses
differently from all other nations, the Court actually achieved
international uniformity by aligning American jurisprudence with the
internationally adopted view. The "peril of the sea" issue is different,
however, because some major United States trading partners such as
Canada and France have charted a similar course to the United States
by requiring unforeseeability of the heavy weather conditions before
allowing a "peril of the sea" defense to stand."3
In light of these decisions, it is inaccurate to argue that the
majority of United States courts are at odds with their foreign
counterparts. Were the Supreme Court to reverse a long line of
venerable precedent establishing unforeseeability of weather and sea
conditions as a necessary element of the "peril of the sea" defense, it
would not promote international uniformity because the courts of
countries such as Canada, France and Belgium would still be applying

sea .... ).
108. See Sturley, supra note 20 (stating the United States' view that a "peril of the sea"
is not something that is foreseeable) (citing Thyssen, Inc. v. S/S Eurounity, 21 F.3d 533, 539
(2d Cir. 1994).
109. 515 U.S. 528 (1995).
110. See id. at 530.
111. See supra note 2.
112. See Vimar, 515 U.S. at 537 (emphasis added) (declining to interpret our version of
the Hague rules in a manner that is contradictory to every other nation's interpretation).
113. See supra notes 85-89 and accompanying text.
1454 SOUTH TEXAS LAW REVIEW [Vol. 41:1439

the foreseeability test.' 4 The use of the foreseeability test, therefore,

does not impede international uniformity in the maritime arena.
Finally, by affirming the enforceability of foreign arbitration
clauses under COGSA, the Vimar Court discarded the parochial view
that all disputes must be resolved in American courts under American
laws." 5 However, there is nothing parochial about applying well-
established American law in cases properly brought before a court of
the United States, especially when that law is recognized and followed
by some of the world's most important maritime nations and trading
partners of the United States."6

C. National CommercialInterests Mandate the Use of the

ForeseeabilityTest
"While it is in the interests of great fleet-owning nations that their
ocean carriers.., should be as fully protected as possible from
liability at the suit of shippers and consignees, the interests of those
nations which rely upon those fleets for their import and export trade
is to the contrary.. ' ..
In response to such national interests, the United States of
America and Australia, which both rely more on trade than shipping,
enacted the Harter Act of 18931 and the Australian Sea Carriage of
Goods Act of 1904, respectively." 9 These Acts 20 "circumscribed the
carrier's freedom to contract out of liability.'
The United States is a nation that owes its economic greatness on
trade rather than shipping.' 2' The United States economy is
substantially more dependent on cargo owners trading goods
internationally than on the carriers that transport these goods
overseas.' 22 Moreover, the Supreme Court fostered international
uniformity in Vimar in order to encourage the expansion of American

114. See Vimar, 515 U.S. at 537.

115. See id. at 538 ("The expansion of American business and industry will hardly be
encouraged ... if, notwithstanding solemn contracts, we insist on a parochial concept that
all disputes must be resolved under our laws in our courts.") (quoting The Bremen v.
Zapata Off-Shore Co., 407 U.S. 1, 9 (1972).
116. See supra Part II.B.
117. Port Jackson Stevedoring Pty. Ltd. v. Salmond & Spraggon (Aust.) Pty. Ltd.,
[1978] 139 C.L.R. 231, 258 (Austl.).
118. 46 U.S.C. §§ 190-96 (1994).
119. Port Jackson, 139 C.L.R. at 259.
120. See id.
121. See id.
122. Id. at 258-59.
2000] "PERIL OF THE SEA" EXCEPTION TO COGSA 1455

business and industry.23 International uniformity should continue to

be a goal of the United States and other commercial nations. Sound
economic policy requires not compromising the cargo owners'
interests by widening the scope of liability exemptions for carriers,
thus maintaining the "stricter" United States approach.124 Eliminating
the foreseeability factor from the "peril of the sea" defense will
expand carriers' protection from liability and actually work harm to
this important policy of protecting American foreign trade."' This is
especially true where such a move is unlikely to lead to international
uniformity anyway.
Foreign courts have also recognized that "if public policy does
not dictate [a certain decision], neither do considerations of
[international] comity.' ' 26 In this light, it is a grave mistake to justify
an adverse effect on American interests in the name of international
uniformity that is virtually non-existent. As Judge Stephen aptly
remarked,
uniformity of the law affecting international trade is [doubtlessly
difficult to attain] but it may be that the path to it lies rather by route
of international conventions and subsequent national legislation than
by the adoption of any deliberate direction in the27 judicial
interpretation of the parties' documents in particular cases.1
Until such a convention takes place, American jurisprudence should
not adopt a position that harms national commercial interests.

IV. CONSIDERING A NEW TEST AND ITS APPLICABILITY TO

MARITIME CASES

Based on the foregoing considerations, the proposed definition of

a "peril of the sea" is that heavy weather conditions that are expected
or foreseeable to the carrier should not constitute a "peril of the sea"
exception to a carrier's liability under section 4(c)(2) of COGSA for
cargo damage resulting from such conditions, unless such conditions

123. See Vimar Seguros y Reaseguros, S.A. v. M/V Sky Reefer, 515 U.S. 528, 538
(1995) ("The expansion of American business and industry will hardly be encouraged...
if, notwithstanding solemn contracts, we insist on a parochial concept that all disputes must
be resolved under our laws in our courts.") (quoting The Bremen v. Zapata Off-Shore Co.,
407 U.S. 1, 9 (1972).
124. See TETLEY, supra note 11, at 431 (stating that the United States has maintained
a stricter definition of "peril of the sea" than England).
125. See supra section II.B.
126. See Port Jackson Stevedoring Pty. Ltd. v. Salmond & Spraggon (Aust.) Pty. Ltd.,
[1978] 139 C.L.R. 231, 258 (Austl.).
127. Id. at 260.
1456 SOUTH TEXAS LA W REVIEW [Vol. 41:1439

turn out to be significantly harsher than predicted, and cannot

therefore be guarded against through the exercise of normal care and
skill. 28
This definition offers a workable standard because it involves the
application of a fairly straight-forward factual inquiry (looking at
whether the weather that caused the cargo damage was sufficiently
harsher than what the carrier reasonably expected). Additionally, this
definition complies with venerable United States precedent as well as
with several foreign interpretations, leading to a considerable level of
international uniformity. 29 Finally, the proposed definition fully
considers the effect of high technology in modern shipping and serves
important national commercial interests.'30

V. CONCLUSION

It is true that no test can be adequate to encompass every

conceivable situation that might constitute a "peril of the sea."
Furthermore, it is well accepted that "deciding whether a given loss
resulted from a 'peril of the sea' is [a] highly fact-specific [inquiry]."''
It is hoped, however, that such a test would lead to uniformity of
maritime decisions and increase predictability in maritime
jurisprudence.

Harry Apostolakopoulos*

128. Cf.Force, supra note 1, at 2068 (comparing Article 4(2)(c) of the Hague rules to
Hamburg's rules).
129. See Vimar Seguros y Reaseguros, S.A. v. MV Sky Reefer, 515 U.S. 528, 538
(1995) (acknowledging the benefit of uniformity within international trade).
130. See supra note 119 and accompanying text.
131. Sturley, supra note 20, at 311.
* Briefing Attorney, First Court of Appeals, JD, South Texas College of Law, cum laude,
1999; BA University of Wyoming.