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PERILS OF THE SEA UNDER ENGLISH, FRENCH AND GREEK LAW : KATSIVELA : (2014) 20 JIML 343
Perils of the sea under English, French

and Greek law; a perilous venture?
Marel Katsivela
Assistant Professor, Faculty of Law, University of Ottawa*
This article provides a comparative analysis of provision 4.2.c of the Hague and Hague-Visby
Rules exempting the international ocean carrier of goods from liability for ‘perils of the sea’
following English, French and Greek law. The author analyses the conditions of application and
the main characteristics of the liability defence under the laws, case law and doctrine of the
three countries in order to determine whether uniformity in the qualification of the exemption
exists or is possible.
1. Introduction
This study is a comparative analysis of selected issues arising under Article 4.2(c) of the Hague1 and
the Hague-Visby Rules.2 These provisions exempt the international ocean carrier of goods from
liability for ‘perils, dangers and accidents of the sea or other navigable waters’ (or ‘perils of the sea’).
It constitutes one of the 17 liability defences that the carrier can invoke in case of cargo damage or
loss and is not further defined by the Hague-Visby Rules. The incidents that may qualify as perils of
the sea are therefore determined under national laws and/or case law.
The questions that naturally arise and are relevant to this article are how domestic laws and/or courts
define what qualifies as a peril of the sea: what conditions constitute a peril of the sea and what are
the main characteristics of perils of the sea?3 The laws, case law and doctrine of three major seafaring
countries will be considered in particular: the United Kingdom (UK) (English law), France and
Greece4 and will constitute a point of reference at the international level.
* Programme de common law en Français. The author would like to thank the Law Foundation of Ontario for its financial
support and law professionals overseas for their guidance in completing this article.
1
The International Convention for the Unification of Certain Rules of Law Relating to Bills of Lading (Hague Rules) (25 August
1924) 120 LNTS 155 (1924).
2
The Hague-Visby Rules refer to the Hague Rules as amended by two protocols. The first protocol: ‘Protocol to Amend the
International Convention for the Unification of Certain Rules of Law Relating to Bills of Lading’, (commonly known as the ‘Visby
Protocol 1968’), was adopted at Brussels on 23 February 1968 and entered into force on 23 June 1977. The second protocol:
‘Protocol Amending the International Convention for the Unification of Certain Rules of Law Relating to Bills of Lading (August
25, 1924, as Amended by the Protocol of February 23, 1968)’ (commonly known as the ‘SDR Visby Protocol 1979’), was
adopted at Brussels on 21 December 1979 and entered into force on 14 February 1984.
3
Although not all of the different aspects of these questions will be exhaustively examined, this article will describe and analyse
domestic laws on important issues regarding the qualification of perils of the sea. Subsidiary issues such as burden of proof,
the vessel’s seaworthiness or other similar exemptions – such as acts of God – will be touched upon but not commented on
in detail.
4
Some of the English cases mentioned in this article predate the Hague Rules but reflect the same principles and will, therefore,
be cited. We intend to comment on perils of the sea under the laws of other jurisdictions in future articles.
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344 (2014) 20 JIML : PERILS OF THE SEA UNDER ENGLISH, FRENCH AND GREEK LAW : KATSIVELA
All three jurisdictions have adopted the Hague-Visby Rules.5 The UK domestic law giving them
effect maintains the 17 carrier defences, including the perils of the sea exemption.6 Former
legislation enacting the Hague Rules did the same.7 The Greek translation of the perils of the sea
liability exception contained in the Hague-Visby Rules is similarly phrased and can be translated as:
‘perils or accidents at sea or in other navigable waters’.8 Prior to the adoption of the Hague-Visby
Rules, the domestic Code of Private Maritime Law of 1958 (CPML) had adapted its provisions to the
1924 Hague Rules and exonerated the ocean carrier of goods for ‘events emanating from the sea’
(Article 144), a wording very similar to the one present under Article 4.2(c) of the rules.9 When the
Hague-Visby Rules were enacted in Greece, the provisions of the CPML falling under the scope of
these rules were abolished.10 In practice, however, Greek case law and doctrine after 1992
continued to refer to the CPML perils of the sea liability exception, a judicial trend that is still noted
today.11
The French text of the Hague and the Hague-Visby Rules12 regards perils of the sea (‘Des périls,
dangers ou accidents de la mer ou d’autres eaux navigables’), acts of God, acts of war, quarantines,
strikes, fires etc as separate carrier exoneration causes. By an ordinance of 28 October 2010, France
adopted a new transport code (Code des Transports).13 Its Article L5422-12(3) regroups several
Hague and Hague-Visby Rules liability exceptions – acts of war, acts of God, perils of the sea,
acts of public enemies, the arrest or restraint of princes . . ., quarantines – under the following
exoneration cause: ‘. . . event[s] non attributable to the carrier’ (. . . événement[s] non imputable au
transporteur). This instrument codified the French Law of 18 June 1966 which, through amendments,
had adopted the Hague-Visby Rules at the domestic level.14 In its Article 27(d), the 1966 legislation
maintained a similar provision to the transport code’s Article L5422-12(3).15 Interestingly, the
formerly applicable domestic law of 2 April 1936 giving effect to the Hague Rules in France, had
5
See Comité Maritime International (CMI) ‘CMI Yearbook: Status of ratifications to Maritime Conventions’ (2009) CMI
http://comitemaritime.org/Uploads/pdf/CMI-SRMC.pdf. The UK adopted the Hague-Visby Rules in the Carriage of Goods by
Sea Act 1971 http://www.legislation.gov.uk/ukpga/1971/19. For France see Note 14 below and accompanying text. Greece
ratified the Hague-Visby Rules in 1992 with the adoption of law 2107/1992 http://lawdb.intrasoftnet.com/nomos/nomos_frame.
html. This law extends the application of the Hague-Visby Rules to the transportation of goods between Greek ports. Despite
the application of the Hague-Visby Rules in the three countries, we will also examine Hague Rules case law on perils of the
sea, since the sea peril exemption remained unchanged in the two sets of rules.
6
The UK Carriage of Goods by Sea Act 1971(n 5) reproduces, in its schedule, the Hague-Visby Rules.
7
See Carriage of Goods by Sea Act 1924. Sanford D Cole Hague Rules Explained: Carriage of Goods by Sea Act 1924 (2nd
edn Effingham Wilson London 1925) at 88.
8
For the Greek translation of the Hague-Visby Rules exception see Giorgos Gioggaras Hague-Visby Rules (Bookstars-Gioggaras
Kifisia 2007) 93 and the domestic 1992 legislation (n 5) adopting the Hague-Visby Rules. This legislation maintains the 17
carrier defences of the Hague-Visby Rules. Authors argue, however, that the Greek translation of the defence is not very precise
because a peril ‘at sea’ may include an event that is simply encountered at sea and which is not due specifically to the nature
and action of the sea. See Aliki Kiantou-Pampouki Nautiko Dikaio II (6th edn Sakkoula editions Thessaloniki 2007) 542
(Pampouki). As will be discussed later, this is not the direction generally taken by Greek case law.
9
Pampouki (n 8) 519, 536. Contrary to the Hague-Visby Rules, art 144 of the CPML does not refer to ‘other navigable waters’,
probably because Greece does not have other noteworthy navigable waters than the sea. The CPML was signed in 1948 in
Greece and entered into force in 1958. For the CPML see Hellenic Ministry of Justice, Transparency and Human Rights
http://www.ministryofjustice.gr/site/kodikes/.
10
For a very good analysis of the relation of the Hague and the Hague-Visby Rules to the CPML see Pampouki (n 8) 10–14.
11
This is probably due to the similar wording of the exception in the two sets of rules. Pampouki (n 8) 537. Case law and
doctrine referred to in this article comment on the Hague-Visby Rules and/or art 144 of the CPML.
12
The Hague Rules were drafted in French, whereas the Hague-Visby Protocols were drafted in French and English, both being
equally authoritative versions.
13
Code des Transports (2010) http://www.legifrance.gouv.fr/affichCode.do?cidTexte=LEGITEXT000023086525&date
Texte=20101202. This code regulates all modes of transport in France and replaces numerous previous legislative enactments.
14
Loi no 66-420 du 18 juin 1966 sur les contrats d’affrètement et de transport maritimes (2010) http://www.legifrance.
gouv.fr/affichTexte.do;jsessionid=4376BC8E267D2BAA67EDE3703F01A3AA.tpdjo10v_2?cidTexte=JORFTEXT000000692464
&dateTexte=20101103. Pierre Bonassies, Christian Scapel Droit Maritime (2nd edn LGDJ Paris 2010) 605 on the amendments
of the law (Scapel).
15
This article referred to ‘. . . événement non imputable au transporteur’, like the 2010 code’s corresponding provision does.

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qualified the above-mentioned liability exceptions as ‘fortuitous event(s) or force majeure’ (cas fortuit
ou de force majeure – Article 4.3).16
The divergent domestic law provisions suggest that similarities as well as differences may exist as to
what qualifies a peril of the sea in the three jurisdictions. The intention here is to describe in greater
detail the domestic laws and case law on this point,17 to discover their main similarities and
differences, and to determine the extent to which uniformity of the applicable principles exists or is
possible. If uniformity exists, the intent of the drafters of the Hague and the Hague-Visby Rules would
be honoured.18 In the absence of uniformity, an attempt will be made to determine ways to
approximate the divergent domestic law principles.
In developing these ideas, the theoretical approach to comparative legal analysis is promoted, which
favours uniformity of the law following the intention of the drafters of the Hague and the Hague-
Visby Rules. Unlike the eminent comparative law scholar, Pierre Legrand, this author does not
believe that universalism in law is a delusion. On the contrary, this author agrees with another
renowned comparative law scholar, Rodolfo Sacco, who notes that multinational conventions make
private law uniform and that this uniformity aims at avoiding legal relationships from being regulated
in a contradictory way.19 Uniformity in the definition of the perils of the sea exception in the three
jurisdictions will, therefore, be a guiding principle in this article.
A comparative analysis of the laws and case law of different jurisdictions regarding the perils of the
sea ocean carrier exoneration clause under the Hague and the Hague-Visby Rules is inevitably
complex, and this comparative legal study will seek to determine the extent to which uniformity of
domestic laws and case law is present or possible.
Following this Introduction, the article is divided into further sections, the first three of which
describe the respective domestic laws, case law and doctrine regarding the definition of the perils of
the sea exemption. The next section compares and analyses the applicable principles, whereupon
the article concludes.
2. Defining a peril of the sea under English law

Under English law, a peril of the sea is a carrier defence that includes events peculiar to the sea or
to a ship at sea such as an accidental incursion of sea water, currents, storms, collisions, tides and
stranding.20 Incidents that may occur ‘on the sea’ but which are not peculiar to the sea or to the ship
at sea, for example rats damaging the cargo, theft of the cargo or cargo damage owing to the
16
Loi du 2 avril 1936 relative aux transports des marchandises par mer (1967) http://www.legifrance.gouv.fr/affichTexte.do?
cidTexte=LEGITEXT000006070992&dateTexte=vig. The law of 2 April 1936 did not faithfully incorporate the Hague Rules. See
Scapel (n 14) 604–605.
17
The commentary here will refer to carriage of goods and insurance case law in the respective jurisdictions. Even though a
peril of the sea is defined similarly in both these fields, the reader should bear in mind that in the context of marine insurance
a peril of the sea operates regardless of fault on the part of the carrier or his agents. In contrast, in carriage of goods cases, such
negligence disallows the carrier the benefit of the defence. Sir Richard Aikens, Richard Lord and Michael Bools Bills of Lading
(Informa Maritime & Transport London 2006) 273 (Aikens). Carver on Bills of Lading (3rd edn Sweet & Maxwell London 2011)
710 (Carver). For a similar definition of perils of the sea in the two fields see The Xantho (1887) 12 App Cas (HL)(QL); Hamilton,
Fraser & Co v Pandorf & Co (1887) 12 App Cas 518 (HL).
18
Comité Maritime International ‘The travaux préparatoires of the Hague and of the Hague-Visby Rules’ http://www.
comitemaritime.org/Uploads/Publications/Travaux%20Preparatoires%20of%20the%20Hague%20Rules%20and%20of%20the
%20Hague-Visby%20Rules.pdf at 27. It should be noted that the 17 carrier liability exemptions contained in the Hague and
the Hague-Visby Rules are based on English common law. ibid 375.
19
Rodolfo Sacco ‘Diversity and uniformity in the law’ (2001) 49 Am. J. Comp. L. 171 at 179. See also Pierre Legrand ‘Brèves
réflexions sur l’Utopie unitaire en droit’ (2000) 3(1) Revue de la Common Law en Français 111–26.
20
See The Xantho (n 17) for a collision. The closing of the ventilators in heavy weather resulting in the cargo overheating has
also been qualified as a peril of the sea. Canada Rice Mills v Union Marine (1941) AC 55 (HL)(QL). For the incidents mentioned
see Stewart C Boyd, Steven Berry, Andrew S Burrows, Bernard Eder, David Foxton and Christopher F Smith Scrutton on
Charterparties and Bills of Lading (21st ed, Sweet & Maxwell London 2008) 206–209 (Scrutton). A significant proportion of
cargo damage is due to perils of the sea in the broad sense of incursion of sea water or the action of the weather. Aikens (n 17)
274.

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explosion of boilers or torrential rainfall do not qualify as perils of the sea.21 This liability exception
is frequently invoked as a defence by carriers but it rarely succeeds in practice.22
It has often been said that this exoneration clause must result from the exceptional violence of the
winds and waves.23 Case law and doctrine, however, seem to agree that a storm whose force is not
exceptional, a ship running onto a sunken rock in calm weather, the quiet and undisturbed fortuitous
flow of perfectly calm water into a ship, or a high bow wave caused by a powerful tug towing a
vessel in fine weather and in closed water, may qualify as a peril of the sea.24 They suggest that the
term ‘extraordinary’ or ‘violent’ should be replaced by ‘unexpected’ or ‘out of the ordinary course of
the adventure’.25
What constitutes such an event has often exercised the courts when all the circumstances are
examined on a case-by-case basis: the conditions of the winds and the sea, their duration, the
location and the time of the year they take place, the duration of the voyage, and so on. In
considering some of these factors, English courts have held that heavy seas and winds of force 10 in
the Atlantic Ocean during the autumn months may not qualify as a peril of the sea.26 On the other
hand, a peril of the sea may be present when a vessel encounters rough seas and winds of force
10–12 for five days during the winter months. In the North Atlantic such weather was considered to
have constituted a peril of the sea, as stated in WP Wood & Co v Hanseatische:27
It was a winter voyage, but the weather was exceptionally violent, though in a sense violent weather
may be expected in a winter voyage across the North Atlantic. Still, the degree of violence in this case
for about five days when the force of the wind was 10, 11 or 12 – five days during a period of nine or
ten days – was such severity of weather as in my judgment, even on a North Atlantic voyage, to
constitute a peril of the sea; . . . I say it was a peril of the sea because . . . she [the vessel] was very
roughly handled by the winds and the waves.
In all cases, cargo damage or loss resulting from ‘wear and tear’ – the natural and inevitable action
of the winds and waves – do not qualify under this defence.28
English courts have held that a peril of the sea may exonerate the carrier if it is unforeseeable.29 In
The Tilia Gorthon,30 a cargo of timber was being transported from Montreal, Canada to Deptford,
England during the autumn months when it encountered rough seas and winds of force 10 in the
Atlantic Ocean. Most of the timber was lost overboard. In the action that followed, the carrier
pleaded the perils of the sea defence. In finding that the weather conditions were foreseeable the
court disallowed the perils of the sea exoneration clause:31
. . . the evidence as to the weather has not satisfied me that the conditions encountered were such as
could not and should not have been contemplated by the shipowners . . . winds of . . . force 10 . . . are
by no means so exceptional in the North Atlantic in the autumn and winter that the possibility of
encountering them can be ignored.
21
The Inchmaree (1887) 12 App Cas 484 (HL) for the explosion of boilers. See Carver (n 17) 710 for some of these examples
and Scrutton (n 20) 207–208.
22
Aikens (n 17) 275.
23
See the arguments advanced in The Xantho (n 17), also reiterated in Canada Rice Mills (n 20).
24
The Xantho, Canada Rice Mills (n 20). See also The Stranna [1937] 2 All ER 383 (affirmed on appeal). Likewise, a hole made
by rats in a pipe carrying seawater and connected to a bathroom in a ship may not be extraordinary but qualified as a peril of
the sea in Pandorf (n 17). See Scrutton (n 20) 208.
25
Scrutton (n 20); Pandorf (n 17), the latter talking about a ‘fortuitous and unexpected’ event.
26
The Tilia Gorthon [1985] 1 Lloyd’s Rep 552 (QB). In this article, the force of the winds follows the Beaufort scale.
27
(1930) 37 Lloyd’s LR 144 (KB) 145, 146.
28
The Xantho (n 17), Pandorf & Co (n 17).
29
The Xantho (n 17) 509 (Lord Herschell) stating that for a peril of the sea to exist: ‘[T]here must be some casualty, something
which could not be foreseen as one of the necessary incidents of the adventure’. See also Pandorf (n 17) (Lord Herschell and
Lord Macnaghten).
30
The Tilia Gorthon (n 26), stating the same requirement of foreseeability: Pandorf (n 17); The Xantho (n 17). Part of the
doctrine agrees with this view: see Aikens (n 17) 275.
31
The Tilia Gorthon (n 26) 555. The foreseeability of the peril of the sea is generally based on the efforts exerted by a reasonable
carrier.

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This line of case law is not necessarily shared by all English judges and authors. In the Pandorf case
already mentioned, for example, Fitzgerald J agreed with the majority opinion describing the
incursion of sea water damaging the cargo owing to rats gnawing through a pipe as ‘fortuitous,
unforeseen, and actually unknown’. He added, however, that this does not mean that ‘to constitute
a peril of the sea the accident or calamity should have been of an unforeseen character’.32 Carver
agrees with this view and argues further that since even abnormal weather conditions can be
foreseen nowadays, the emphasis in determining the presence of a peril of the sea should really
evoke the phrase ‘guarded against’ rather than being ‘foreseen’.33 In this regard, doctrine often states
that under English law, the unforeseeability of the event is not a determining factor in defining a peril
of the sea.34
For a peril of the sea to exonerate the carrier it must also be proven that the incident cannot be
guarded against by the exercise of reasonable care. If the carrier or his agents are negligent in not
avoiding the sea peril, the defence will not apply.35 In Pandorf,36 a cargo of rice was damaged whilst
en route from Burma to Germany. It was discovered that rats had gnawed through a pipe connected
with a bathroom in the ship, leading to the escape of sea water and subsequent damage to the cargo.
In agreeing that this incident constituted a peril of the sea, Lord Macnaghten stated:37
Under these circumstances it seems to me that the accident which caused the damage was one of the
excepted perils or accidents and that there is no reason why the shipowner should not avail himself of
the exception. It was an accidental and unforeseen incursion of the sea that could not have been
guarded against by the exercise of reasonable care.
Further, if the vessel’s unseaworthiness at the beginning of the voyage is the (concurrent) cause of
the cargo damage or loss, the perils of the sea exception cannot be invoked by the carrier.38 The latter
must exercise due diligence in providing a seaworthy vessel. As stated in The Torenia:39
The vessel was unseaworthy by reason of corrosion at the commencement of the relevant voyage. That
unseaworthiness was a cause, indeed the most significant cause of the loss of the vessel and her cargo.
This unseaworthiness was not latent nor was it undiscoverable by due diligence . . . It follows that the
defendants are liable.
One final observation has to be made regarding this exoneration clause. The peril of the sea and acts
of God exemptions under the Hague and Hague-Visby Rules remain, despite their common
characteristics, two separate liability defences. Following English case law, an act of God involves
an occurrence ‘due to natural causes directly and exclusively, without human intervention, . . . that
could not have been prevented by any amount of foresight and pains and care reasonably to be
32
Pandorf (n 17) 528.
33
Carver (n 17) 709–10. Carver supports the holding of the Australian case The Bunga Seroja (1998) [1999] 4 LRC 50 (HC
Australia), where the court opined that the foreseeability of the peril does not preclude the carrier from relying on the perils of
the seas immunity. Carver (n 17) 709–10, 712.
34
See for example M L Hendrikse, N H Margetson and N J Margetson The System of Liability of Articles III and IV of the Hague
[Visby] Rules (Paris Legal Publishers Netherlands 2008) 172.
35
The Glendarroch [1891–94] All ER 484 (CA). In this case, the negligent navigation of the carrier agents’ caused the vessel to
be stranded on rocks. The perils of the sea defence did not exonerate the carrier. See also Steel v State Line Steamship Company
(1877) 3 App Cas 72, 87–88 (HL); The Xantho (n 17); Ceroilfood Shandong Cereals and Oils and Another v Toledo Shipping
Corporation [2006] EWHC 2054 (Comm)(QB), a case decided under the Hague Rules; Aikens (n 17) 274. There is some doubt
under English law on whether the absence of negligence of the carrier or his agents is an element of the perils of the sea
exception and needs, therefore, to be proven by him or whether it is part of art III.2 of the Hague and the Hague-Visby Rules,
in which case the burden of proof of negligence is on the claimant. See Carver (n 17) 710–11.
36
Note 17. In this case, the court quotes the following definition of a peril of the sea: ‘Sea damage occurring at sea and
nobody’s fault’. Even if the case predates the Hague and the Hague-Visby Rules, it reflects the judicial status quo today. It is a
leading case. See Carver (n 17) 710.
37
Pandorf (n 17) 530.
38
Providing a seaworthy vessel is an overriding obligation under English law: excepted perils of the sea cannot be invoked by
the carrier if the vessel’s seaworthiness is not first established: Maxine Footwear Company Ltd v Canadian Government
Merchant Marine Ltd (1959) 2 Lloyd’s Rep 105; The Torenia (1983) 2 Lloyd’s LR 210 (QB).
39
The Torenia (n 38) 230. On the vessel’s unseaworthiness see also The Friso [1980] 1 Lloyd’s Rep 469 (QB).

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expected from [the carrier]’.40 Based on this definition, it is obvious that both perils of the sea and
acts of God are events that cannot be guarded against by ordinary exertions of human skill and
prudence.41 Moreover, both have rarely been successfully relied upon by carriers.42
However, as stated above, perils of the sea refer to events peculiar to the sea or to a ship at sea,
whereas acts of God are exclusively due to natural causes excluding any human intervention. This
includes damage resulting from events such as frost, rain or lightning, which do not are not
considered to be perils of the sea since they are not incidents peculiar to the sea or to a ship at sea.43
A collision with an iceberg would probably considered an act of God and also as a peril of the sea
in the absence of the carrier’s negligence because it is an event peculiar to the sea but also a natural
cause of damage. In the doctrine there is some potential overlap between the two excepted perils,44
which remain, however, independent from one another.
Overall, perils of the sea under English law are occurrences peculiar to the sea or to a ship at sea.
They are distinct from the act of God liability exception, despite the common characteristics the two
defences may present. Although they do not need to be extraordinary in nature, they need to be
reasonably unavoidable and – according to some – unforeseeable occurrences. If the vessel’s
unseaworthiness at the beginning of the voyage is the cause of the cargo loss or damage, the carrier
will be liable. The exception is strictly construed in practice, and therefore rarely succeeds before
the courts.
3. Defining a peril of the sea under French law

Under French law, perils of the sea – called périls de la mer45 but also fortunes de mer – are events
emanating from the sea, accidents of maritime navigation: storms, fog, currents, tides, reefs,
stranding on shoals or coastal rocks, and collisions are examples of such perils.46 They are specific
to sea navigation and are distinguished from perils present on land.47 Although this carrier defence
is frequently invoked by carriers, it does not frequently succeed in court because modern vessels are
deemed capable of surmounting rough weather and storms.48
French case law often refers to perils of the sea as events of exceptional force or intensity,49 or as
unusually harsh (anormalement pénible) occurrences.50 This could be the case for winds of force 10–
12 and waves of 6–8 metres or an exceptional wave, similar to what mariners call freak waves
(vagues monstrueuses).51 The requirement has not always been strictly interpreted by the courts since
it has also been held that a swell of no exceptional violence52 or winds of force 7 accompanied by
40
Nugent v Smith (1876) 1 CPD 423 (CA) (Nugent). See also Aikens (n 17) 275.
41
Nugent v Smith (n 40) 437; 438 for an act of God. Based on the afore-mentioned analysis for perils of the sea.
42
Aikens (n 17) 275 (act of God). See also Note 22 and accompanying text (perils of the sea).
43
Scrutton (n 20) 207.
44
Aikens (n 17) 275.
45
The official French text of the Hague and the Hague-Visby Rules phrases this exception as follows: ‘Des périls, dangers ou
accidents de la mer ou d’autres eaux navigables’.
46
For most of these examples see the note of René Rodière: Cour d’Appel de Paris The Armorique (1971) 23 (1971) DMF 222
at 230 (The Armorique). See also Scapel (n 14) 734. For a collision with a ship wreckage see Cour d’Appel d’Aix-en-Provence
Tropical Queen (1986) 40 (1988) DMF 330.
47
Paul Chauveau Traité de Droit Maritime (Librairies Techniques Paris 1958) para 456; René Rodière Traité Général de Droit
Maritime Tome II (Éditions Dalloz Paris 1968) 400–401.
48
Scapel (n 14) 734–35. Tribunal de Commerce de Marseille Jolly Grigio (1995) 1996 DMF 250.
49
Tribunal de Commerce de Paris The Normania (1973) 26 (1974) DMF 161 at 161, 163; Cour de Cassation The Carima (2009)
2010 DMF 19 at 27 (The Carima).
50
Cour d’Appel of Aix The Koudekerk (1973) 25 (1973) DMF 654 at 657 (The Koudekerk); Tribunal de Commerce de Marseille
Cap Canaille (2004) 2005 DMF 894 at 897, 905 (Canaille).
51
Scapel (n 14) 735. Cour d’Appel de Rouen Saint Paul (1988) 1991 DMF 360 at 361–64 (Saint Paul) for winds of force
10–12. It has been noted that waves of 12 metres cannot be called ‘freak’ waves. This definition applies to waves of 30–40
metres. See Canaille (n 50) 897.
52
The Armorique (n 46) 227.

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a heavy roll of the vessel53 may not be extraordinary in nature but can still be considered to fall under
this exception.
In determining the presence of a peril of the sea the intensity of the wind, the presence of currents
and/or rough seas, their duration, the voyage and region in question etc are elements that are
taken into account. What also needs to be considered is their effect on a seaworthy vessel: if cargo
damage or loss occurs, for example, owing to rough weather conditions and despite the vessel’s
seaworthiness, this defence may apply. This is not so if the vessel’s unseaworthiness is the cause of
the cargo damage or loss.54
As mentioned earlier, the domestic law of 2 April 1936 enacting the Hague Rules in France defined
several liability exceptions, including perils of the sea, as ‘fortuitous event(s) or force majeure’ (cas
fortuit ou de force majeure – Article 4.3).55 The assimilation of perils of the sea to force majeure
events persisted after the adoption of the 1966 legislation which referred, instead, to ‘. . . event non
attributable to the carrier’ (. . . événement non imputable au transporteur).56 Following this view,
which is still valid today, perils of the sea do not automatically qualify as the same as force majeure.
The defendant carrier must prove that the event in question presents the characteristics of the
domestic force majeure concept.57
Under French law, force majeure is a defence in contracts and the law of torts (extra-contractual
obligations).58 The person invoking it must establish three elements: an event (a) external to the
debtor that is (b) unforeseeable and (c) irresistible in nature. In principle, all three elements need to
be present for the defence to apply.59 An event ‘external’ to the debtor means an occurrence outside
the debtor’s sphere of activities or control.60 An unforeseeable event refers to an occurrence that
cannot be foreseen by a reasonable person (on an objective standard).61 Even though it is true that
all catastrophic events, even wars or floods, can be foreseen by a reasonable person, what we are
really looking for is the accompanying elements of abnormality, surprise and rarity of the event.62 An
irresistible occurrence renders the execution of an obligation impossible and requires the debtor to
take reasonable measures (on an objective standard) to confront it.63 Some cases and doctrine view
irresistibility as the most important element of the civil law force majeure concept.64 Following this
view, foreseeable but irresistible events may qualify as force majeure.65
Since, as mentioned earlier, French courts have traditionally assimilated perils of the sea into the
domestic force majeure concept, they reject, in principle, the idea that a carrier may be exempted
from liability in the presence of foreseeable conditions or unforeseeable conditions that a reasonable
53
Cour de Cassation The Tolga (1991) 44 (1992) DMF 627 at 628.
54
René Rodière The Armorique (n 46) 230; Cour de Paris Sté Axa Corporate v Menor (2004) 3023 (2004) BTL 139 at 139–40.
It should be noted that providing a seaworthy vessel is not, in principle, an overriding obligation under French law. See Scapel
(n 14) 679–80.
55
Note 16 and accompanying text.
56
René Rodière, Emmanuel du Pontavice Droit Maritime (12th edn Éditions Dalloz Paris 1997) 348. Jurisclasseur ‘Force
majeure au regard du péril de mer’ (25 September 2002) Fasc 465-20 (QL) (Jurisclasseur). On the 1966 legislation and the
similar provision present under the 2010 Transport Code see Notes 14, 15 and accompanying text.
57
Rodière, du Pontavice (n 56) 380.
58
See art 1148 of the French Civil Code http://www.legifrance.gouv.fr/affichCode.do?cidTexte=LEGITEXT000006070721.
Under French law, the terms force majeure and fortuitous events are terms used interchangeably. François Terré, Philippe
Simler and Yves Lequette Droit civil – les obligations (10th edn Dalloz Paris 2009) 585 (Terré).
59
Terré (n 58) 585–88.
60
This is the case of a natural catastrophe (flood, wind storm etc), an act of war etc. For this condition in general see Terré (n
58) 585–86; Cour de Cassation (2001) 98-21009 www.legifrance.gouv.fr.
61
Terré (n 58) 586.
62
ibid.
63
ibid 587.
64
As reported by Le Tourneau Droit de la responsabilité et des contrats (8th edn Dalloz Paris 2010–2011) 597–98.
65
In Cour de Cassation The British Foreign Marine Insurance Cy v Sté Szymanzki et al (1997) 2723 (1997) BTL 708 the court
exonerated a land carrier for force majeure in a case of armed robbery. In so doing, the court insisted on the irresistibility of
the incident.

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carrier could otherwise have prevented.66 It is usually extreme weather (such as a hurricane, a
cyclone, or their effects) that qualifies as a peril of the sea/force majeure.67 Owing to the rigidity of
this view, another trend has also developed regarding force majeure as an irresistible but foreseeable
event.68 This relaxed force majeure/perils of the sea position is supported by some authors and is
said to approximate the Hague Rules, which do not require a peril of the sea to constitute an
unforeseeable occurrence.69
Apart from the traditional stance assimilating perils of the sea into the domestic force majeure
concept, either strictly or following a more flexible definition of the latter, there are some very
diverse French decisions on this ocean carrier liability exception.70 A judicial trend that cannot go
unnoticed, in this regard, dissociates the domestic force majeure concept from the perils of the sea
defence or simply notes that the Hague and the Hague-Visby Rules do not require the latter to be
unforeseeable or irresistible.71 Following this trend, a sea peril is an abnormally harsh event that
results from the combined presence of different factors such as the force of the winds, the waves and
the state of the sea.72
In the Court of Appeal of Rouen case Ville d’Anvers,73 bags of flour were being transported from
Dunkerque to Damman when very rough seas and winds vacillating from force 3 to force 10 were
encountered in transit, causing the vessel to heave back and navigate at different speeds, whilst
following various routes. The carrier invoked the perils of the sea defence in order to be exonerated
from liability for the resulting cargo damage. The respondents argued that prevailing weather
conditions were foreseeable and not irresistible. The Court of Appeal sided with the carrier, noting
that perils of the sea do not need to present the characteristics of force majeure and are evaluated
less strictly under the Hague Rules than under domestic law. The weather conditions in this case and
their effect on the vessel (navigation at different speeds and following various routes, deterioration
of parts of the vessel) justified the presence of a peril of the sea defence. The Cour de Cassation
confirmed the Court of Appeal judgment on this point.
In another case, the Saint-Louis of the Court of Appeal of Aix,74 the court adopted a similar reasoning
but concluded against the carrier. Here, a cargo of trailers laden with dates was being transported
during the winter months from Algeria to Marseilles. Owing to rough weather conditions along the
voyage (winds of force 6–9, rough seas and a gust of wind of force 10 causing the vessel to remain
idle for 30 hours), the merchandise arrived damaged at its destination. The carrier invoked the perils
of the sea exception. The Court of Appeal noted that the Hague Rules do not require a peril of the
sea to be unforeseeable and irresistible.75 The weather conditions in this case were not abnormally
harsh and did not present unusual difficulties for the time of the year the voyage took place,
especially for a carrier who had often followed the same itinerary. It was the carrier who should have
taken more appropriate measures, such as strengthening the lashing of the merchandise against the
weather conditions.76 The carrier could not, therefore, escape liability.
66
Cour de Cassation Cap Bon (1973) 1973 DMF 399 at 401, 403 (note René Rodière). In the carrier’s negligence is also
included the negligence of the crew. Cour d’Aix en Provence Groupama Transport et al v CMA/CGM (2008) 2009 BTL 579–
80. Cour de Bordeaux (1985) 2201 (1986) BTL 410 for a similar holding (winds of force 8 were deemed foreseeable).
67
CA Paris SA Chartis Europe v Helvetia Assurances (2013) 3473 (2013) BTL at 543–44 on this point.
68
On the impact of this trend on maritime case law see Scapel (n 14) 734; Jurisclasseur (n 56); Cour de Cassation (1998) 1998
DMF 919 at 923. This is a maritime but not a peril of the sea case.
69
As reported by Jurisclasseur (n 56).
70
As reported by Carima (note) (n 49) 21.
71
Cour de Cassation The Houtmangracht (1992) 1993 DMF 45, No 90-20083 www.legifrance.gouv.fr; Cour d’ Appel de Paris
The Anna-Oden (1986) 40 (1988) DMF 101 at 107; Cour d’ Appel de Paris The Armorique (n 46) 227, 231; The Koudekerk (n
50) 657; and Jurisclasseur (n 56).
72
Cour d’Appel de Rouen (2004) No 03/04692 (QL-Jurisdata).
73
Cour d’Appel de Rouen Ville d’Anvers (1972) 1972 DMF 722 at 725, confirmed on appeal.
74
Cour d’Appel d’Aix en Provence Saint-Louis (1993) 1994 DMF 370.
75
ibid. See also Rodière The Armorique (n 46) 231. Other authors add that it is the act of God Hague and Hague-Visby Rules
liability exception that approximates the domestic French force majeure concept. See Antoine Vialard, Cour d’Appel d’Aix-en-
Province Ras Mohamed (2001) 2001 DMF 820 at 833.
76
ibid. See also The Koudekerk (n 50) 657 and The Anna-Oden (n 71).

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Notwithstanding the diverse views as to what qualifies as a peril of the sea under French law, recent
decisions do not readily exonerate the carrier on the basis of this defence.77 The rigour of the French
courts is said to approximate the restrictive French force majeure notion.78
Overall, perils of the sea under French law are accidents specific to maritime navigation. They
constitute abnormally harsh events that may exonerate the carrier. An extremely diverse case law
characterises this defence. The traditional French judicial stance assimilates perils of the sea to the
domestic force majeure concept either strictly or following a more flexible definition of the latter.
Other judicial holdings dissociate perils of the sea from the domestic force majeure concept or
simply note that the Hague and the Hague-Visby Rules do not require them to be unforeseeable or
irresistible. Notwithstanding the judicial position adopted, recent French case law does not easily
sanction this carrier liability defence.
4. Defining a peril of the sea under Greek law

Following Greek case law and doctrine, perils of the sea refer to events attributed to the sea and to
the specific conditions of sea navigation, such as the incursion of sea water into the vessel, rough
seas, storms, large waves, collisions, damage by icebergs or reefs etc.79 Events occurring on the sea
that are not attributable to its characteristics, for example, occurrences that may also take place on
land (eg rainwater damaging the cargo, defective machinery or ventilation), do not qualify as perils
of the sea since they are not specific to the carriage of goods by sea.80 As discussed below, this
liability exception is not easy for the carrier to establish before domestic courts.
Greek cases note that perils of the sea are events that manifest themselves under ‘exceptional and
unusual conditions’81 or under conditions of ‘unusual intensity and danger’.82 These need to exceed
the usual, typical dangers accompanying the ocean carriage.83 Various factors are taken into account
in this regard, such as the intensity and danger of the prevailing conditions, their duration, their
location and the time of the year they take place, and their effect on the vessel etc. For example, it
has been held that winds of force 8–12 accompanied by rough seas lasting several days may fall
under the scope of this defence.84 Further, damages resulting from ‘wear and tear’ do not amount to
a peril of the sea since a vessel is deemed capable of confronting such occurrences.85
An established position under Greek case law is that perils of the sea constitute unforeseeable and/or
unavoidable events.86 This judicial stance approximates the domestic law concept of superior
force,87 which is the Greek equivalent of the French force majeure notion examined earlier.
77
The Carima (n 49) 27, Cour d’Appel de Versailles (2000) 2856 (2000) BTL 541, Cour d’Appel d’Aix-en-Province, Ras
Mohamed (n 75) 825, Cour de Papeete, SA Polynesia Helicoptères v CPTM, (2008) 2009 BTL 515–16. See also Scapel (n 14)
734–35 and Jurisclasseur (n 56).
78
Scapel (n 14). This is particularly so when considering that some of the recent cases insist on the unforeseeability of the
weather conditions. See, for example, Cour d’Appel de Versailles (n 77).
79
Court of Appeal of Piraeus 373/1997 (182353), Court of Appeal of Piraeus 121/2003 (377944), Court of Appeal of Piraeus
259/1990 (3375) and Pampouki (n 8) 178, also referring to foreign doctrine. Unless otherwise indicated, all Greek case law
referred to in this article can be found online using the Greek law database NOMOS, http://lawdb.intrasoftnet.com/nomos/
nomos_frame.html.
80
Pampouki (n 8) 178 and 542, also referring to foreign doctrine.
81
603/1988, Court of Appeal of Piraeus 68/1982.
82
Court of Appeal of Piraeus 121/2003 (377944), Court of Appeal of Piraeus 289/2005 (382874).
83
Court of Appeal of Piraeus 801/1992 (64113), Court of Appeal of Piraeus 259/1990 (3375). However, Greek doctrine and
some cases have also expressed the view that the wording of Hague-Visby Rules art 4.2(c) and art CPML 144 suggest that even
a mild wind or another peril of the sea of low intensity may exonerate the carrier. See Pampouki (n 8) 178, also referring to
case law.
84
Court of Appeal of Piraeus 259/1990 (3375). Likewise, winds of force 9–10 and waves of 20 metres in the Mediterranean
Sea during winter months may amount to a peril of the sea. See Court of Appeal of Piraeus 121/2003 (377944). For a similar
holding involving winds of force 9–10 and waves of 8–10 meters see Court of Appeal of Piraeus 373/1997 (182353).
85
Pampouki (n 8) 543, also referring to English doctrine.
86
Court of Appeal of Piraeus 603/1988 (61220), Court of Appeal of Piraeus 68/1982 (281009). For the prevailing judicial view
see also Pampouki (n 8) 179 and 539. In this article, the terms ‘event that cannot be guarded against’ (English law), ‘irresistible
event’ (French law) and ‘unavoidable event’ (Greek law) will be used interchangeably.
87
Pampouki (n 8) 179, 539.

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Under Greek law, superior force exonerates the debtor from liability in the field of contractual and
extra-contractual obligations.88 There are two superior force theories: the objective and the
subjective one.89 The subjective theory is favoured by Greek courts and is, therefore, of interest
here.90 According to this theory, a superior force event may be external or internal to the debtor’s
activity and control (for example, an act of war, a strike, an earthquake, a revolution or flooding) but
also needs to be reasonably unforeseeable following the circumstances of the specific case and
unavoidable by measures of ‘utmost diligence and care’.91 The latter is based on a subjective
standard and is, therefore, clearly distinguished from that of a reasonable person.92 The defendant
carrier bears the burden of proof of the superior force defence. Greek courts that treat perils of the
sea as superior force events will not exonerate the carrier in the presence of foreseeable conditions93
or unforeseeable conditions that could have been avoided by measures of ‘utmost diligence and
care’.
At the opposite end of this judicial perils of the sea/superior force stance, there are recent Greek
decisions that dissociate the perils of the sea exoneration clause from the domestic superior force
concept.94 According to them, perils of the sea have a broader scope of application than the domestic
superior force concept because they require a carrier to act as a reasonable person and not with the
utmost diligence and care under the circumstances. Further, contrary to the superior force concept,
perils of the sea do not need to be unforeseeable.95 They simply need to manifest themselves under
conditions unusually intense and dangerous, considering that in all cases, the maritime venture
should be ready to confront probable difficulties encountered in transit whose damaging
consequences can be avoided by the exercise of reasonable care.96
An illustration of this more recent case law trend is offered by the 1990 Court of Appeal of Piraeus
case, which involved a cargo of milk transported from France to Piraeus.97 In transit, the vessel
encountered rough seas and strong winds of force 8–12 that obliged the captain to change route and
anchor the ship for several days. After its departure, the vessel again encountered winds of force 8–
10 and large waves causing it to pitch and roll. Both the cargo and the ship suffered damage owing
to the severe weather conditions. In the trial that followed, the court found that the event constituted
a peril of the sea because of its unusual intensity and because the captain had exercised reasonable
care in adequately securing and attaching the cargo.98 It did not question whether the event was
reasonably foreseeable by the carrier. On the contrary, it distinguished the concept of a peril of the
sea from that of superior force, stating that the former does not need to be unforeseeable and does
not require the carrier to act with utmost diligence and care.
In a more recent case of the Court of Appeal of Piraeus,99 the court followed the reasoning of its 1990
holding but reached the opposite conclusion. In this case, the prevailing weather conditions (winds
88
On this concept see arts 336, 338, 342 and 914 of the Greek civil code http://lawdb.intrasoftnet.com/nomos/nomos_
frame.html. See also Mix P Stathopoulos Geniko Enociko Dikaio (Sakkoula editions Athens 2004) 307.
89
Stathopoulos (ibid) 309s and Ast K Georgiadis Enociko Dikaio, Geniko Meroç I (Sakkoula editions Athens 2007) 95s.
90
As reported by Stathopoulos (ibid) 311 and at 96–97, respectively. See also Pampouki (n 8) 540. The latter author also notes
that there are perils of the sea cases that have adopted the objective superior force theory. See Pampouki (n 8) 539.
91
On this theory see Supreme Court 438/2013 (607127), Supreme Court (2006) No 908/2006 (397823), Court of Appeal of
Piraeus 59/2010 (531544) (non-carriage of goods cases); Stathopoulos (n 88) 310–11; Pampouki (n 8) 540; and Georgiadis (n
89) 95.
92
Stathopoulos (n 88) 310 (note 99 and accompanying text).
93
Court of Appeal of Piraeus 603/1988 (61220).
94
373/1997 (182353). See also Pampouki (n 8) 540–41 and 179–80 for this doctrinal/judicial view. For similar doctrinal opinions
and other less noted judicial trends on this exception see Pampouki (n 8) 537–41.
95
For these two arguments see Court of Appeal of Piraeus 289/2005 (382874), Court of Appeal of Piraeus 259/1990 (3375);
Pampouki (n 8) 179 and 541.
96
Court of Appeal of Piraeus 289/2005 (382874), Court of Appeal of Piraeus 259/1990 (3375).
97
98
The court reiterated the definition of perils of the sea as stated above. See Note 96 and accompanying text.
99

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of force 6–8 in the North Adriatic Sea) were not found to be of unusual intensity and danger for the
region and time of the year they occurred. Further, there was negligence on the part of the carrier in
loading and securing the cargo,100 and so he could not be exonerated from liability.
A less frequently debated point under Greek case law is the effect that a vessel’s lack of seaworthi-
ness at the beginning of the voyage may have on the carrier’s liability when he invokes the presence
of a peril of the sea. If the vessel’s unseaworthiness at the beginning of the voyage is the cause of the
damage to the cargo, the perils of the sea exemption will not apply.101 It has, therefore, been held
that where the damage to the cargo has been caused by incursion of sea water not due to a peril of
the sea but, rather, to the vessel’s unseaworthiness, the carrier will be held liable.102
Based on this analysis it is evident that, under Greek law, perils of the sea refer to events attributed
to the sea and to the specific conditions of sea navigation. They manifest themselves under
conditions of ‘unusual intensity and danger’ that exceed the typical perils of sea carriage. Divergent
case law trends characterise this exception. An established judicial view refers to perils of the sea as
superior force events, whilst more recent decisions dissociate them from domestic law concepts. The
vessel’s unseaworthiness at the beginning of the voyage disallows the carrier the benefit of this
defence.
5. Findings and comparative analysis

In all the jurisdictions concerned a peril of the sea is determined on a case-by-case basis, taking into
account highly diversified but relevant factors: the type of occurrence, the condition of winds and
sea, their duration, their location and the time of year they occur etc. This leaves a considerable
margin of discretion to the judges. What is certain is that cargo damage or loss owing to ‘wear and
tear’ or due to the vessel’s unseaworthiness at the beginning of the voyage does not lead to its
application.
Perils of the sea are also viewed as events specific to sea navigation and peculiar to the sea or the
ship at sea, such as storms, tides, collisions and incursion of sea water. Case law and/or doctrine in
the three countries often contrast(s) such events from incidents that may also occur on land, such as
rats eating cargo and cargo damage or loss due to defective machinery.
Further, even if perils of the sea are often referred to as occurrences of an ‘exceptional’ force or
violence, there seems to be a general understanding that this may not always be the case. Case law
and doctrine in the three jurisdictions accept that storms whose force is not exceptional or collisions
in calm waters, for example, may constitute perils of the sea. In order to avoid confusion as to the
scope and the nature of incidents that may justify the presence of this exemption, it would be
preferable for judges and doctrine to abandon reference to events of ‘exceptional’ force or violence
and use, instead, the expression ‘out of the ordinary course of the adventure’.103 The latter does not
specifically target the intensity of the prevailing weather conditions in defining a sea peril and,
therefore, better reflects the status quo under English, French and Greek law.
Finally, although carriers in the three countries often invoke the perils of the sea defence, its
successful application is rare. This is probably due to the fact that modern vessels are deemed
capable of surmounting rough weather and storms. As Captain MacWhirr says in Joseph Conrad’s
novel Typhoon,104 ‘a gale is a gale, . . . and a full-powered steamship has got to face it’.
100
ibid. The court specifically stated that the perils of the sea exception exonerates prima facie the carrier; however, the
claimant can prove his or his agents’ negligence in causing the damage and render him liable.
101
Court of Appeal of Piraeus 931/1993 (67781) referring to Pampouki (n 8) 180 and 544 who, in turn, cites English doctrine.
Under Greek law, the seaworthiness of the vessel at the beginning of the voyage is an overriding obligation, as it is under
English law.
102
Trial Court of Alexandroupoli 35/1998 (276847).
103
Following the suggestion of Scrutton (n 25 and accompanying text).
104
Joseph Conrad Typhoon (Doubleday, Page & Company New York 1919) 65.

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A striking difference between English law on the one hand and French and Greek law on the other,
resides in the English case law requirement that a peril of the sea cannot be foreseen (a debatable
criterion) and guarded against by the exercise of reasonable care and the variety of corresponding
judicial trends prevailing in France and Greece. As mentioned earlier, the traditional judicial stance
in France and Greece assimilates perils of the sea into the domestic force majeure concept, a notion
that is variably defined in the two countries: Greek case law favours the subjective theory of force
majeure, referring to unavoidable perils by measures of utmost diligence and care, whilst the
corresponding French judicial concept applies a reasonableness standard. Other judicial trends in
the two countries dissociate perils of the sea from domestic concepts but render the carrier liable in
case of negligence on his part or on the part of his agents. Therefore, despite the above-mentioned
similarities, defining this defence under English, French and Greek law constitutes a perilous venture
given the different approaches present. This does not provide certainty in the applicable law at the
international level and does not conform to the general intent of the Hague and the Hague-Visby
Rules drafters.
Seeking a uniform definition of the exception is not an easy task given the wide range of judicial
views present. However, it seems reasonable that recourse to domestic law concepts such as force
majeure cannot lead to uniformity considering the parochial interpretations the latter is subject to.
Further, as was stated in the travaux préparatoires of the Hague and the Hague-Visby Rules, it is hard
to determine, in this context, an exact common law equivalent of the civil law force majeure
defence.105 Therefore, from different points of view, domestic law concepts cannot provide a uniform
standard when applied at the international level.
What seems to be a common preoccupation of English, French and Greek courts is whether the
carrier has acted with reasonable care in guarding against the supervening occurrence; for example,
whether he or his agents have adequately secured, loaded, protected or stowed the cargo for the
voyage in question.106 Considering that views shared by the courts of all the jurisdictions examined
here may advance uniformity in the implementation of the defence, guarding against the event by
exercising reasonable care should be an accepted defence of this exception. The unforeseeability of
the supervening occurrence is a less stringent requirement following recent French and Greek
decisions and some English cases. It is therefore doubtful that it can form the basis for a uniform
definition of the exception.
Further, as Carver notes, weather conditions are, more often than not, foreseen or foreseeable.107
Winds of force 8–12 and large waves in the Atlantic Ocean during the winter months, for example,
are foreseeable nowadays. If the carrier cannot be exonerated from liability owing to their predict-
ability, the perils of the sea exception risks becoming obsolete. If, however, the carrier is negligent
in not adequately securing the cargo or in not choosing an alternate route considering the size and
structure of the vessel, the nature of the cargo, the intensity and duration of the foreseeable prevailing
conditions, their location etc, it seems logical not to apply the perils of the sea exception since there
are reasonable measures the carrier can take to guard against the supervening occurrence. A peril of
the sea that cannot be reasonably guarded against, rather than an unforeseeable one, constitutes a
more pragmatic definition of the exception today.
Allowing foreseeable but unavoidable events to qualify as perils of the sea is a carrier-protective
solution since the unforeseeability of the occurrence is not a condition of its application. In order to
counterbalance this advantage given to carrier interests and with a view to attaining a uniform but
just solution, it is proposed that courts research thoroughly the carrier’s or his agents’ negligence
before applying the exception. Based on the circumstances of the case, negligence on the part of the
105
Travaux préparatoires (n 18) 376–77. See also M Katsivela ‘Canadian contract and tort law: the concept of force majeure in
Québec and its common law equivalent’ (2012) 90(1) Revue du Barreau Canadien 69–104, addressing this issue at common
law and at civil law in Canada.
106
Notes 35–37, 76, 100 and accompanying text for English, French and Greek case law respectively.
107
Carver (n 17) 709–10.

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carrier or his agents causing the loss or damage to the goods should disallow the application of this
exoneration clause. A scrupulous monitoring of the carrier’s negligence conforms to the strict
construction of the exception to which all jurisdictions adhere. Perils of the sea should be strictly
construed as exceptions to the principle of carrier liability.
6. Conclusion
While the Hague and the Hague-Visby Rules created a uniform set of principles to govern the
liability of the international ocean carrier of goods, at the same time they allowed divergent domestic
interpretations of the perils of the sea exoneration. The analysis undertaken here has proved that the
English, French and Greek judicial status quo as to what circumstances qualify for this defence under
the Hague and the Hague-Visby Rules presents important similarities but also remarkable differ-
ences. The latter impede the uniform application of the liability exception and invite a dissociation
of the exception from domestic law concepts such as force majeure. It is to be hoped that within the
jurisdictions concerned work will be undertaken towards a uniform definition of perils of the sea.

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Perils of the sea under English, French

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2. Defining a peril of the sea under English law

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3. Defining a peril of the sea under French law

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4. Defining a peril of the sea under Greek law

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5. Findings and comparative analysis

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