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June 5, 1975


The opinion of the court was delivered by: LUMBARD

LUMBARD, Circuit Judge:

On February 7, 1970, the ANTONIO DEMADES, a 700 foot cargo ship owned by the defendant, Anthony Shipping Co., Ltd., then under lump-sum charter to the Hugo Neu Corporation, and carrying over 25,000 tons of steel scrap, sank in the North Pacific on its way to Japan. The cargo owner, Yawata Iron & Steel Co., Ltd., brought suit in the Southern District on February 3, 1971, claiming the shipowner was responsible for loss of the vessel and Yawata's steel scrap valued at $1,458,014.58 The determination of the cause or causes of the sinking in the February storm faces many difficulties of proof largely because the master and the first mate and the ship's logs were lost along with eight members of the crew. As the court cannot say that the cargo owner has established its case by a fair preponderance of the evidence, judgment must be for the shipowner.

The ANTONIO DEMADES sailed from Boston for the Panama Canal on January 6, 1970. The crossing of the Atlantic Ocean and Caribbean Sea was relatively uneventful (except for one period of bad whether) and the ship arrived at Cristobal in the Panama Canal Zone on January 13, 1970. The ANTONIO DEMADES was reprovisioned and then transited the Canal and sailed from Balboa for Japan on January 14. After the ship crossed the International Date Line on February 1-2, 1970, the weather worsened. According to Second Mate Gregos (the only surviving deck officer), in the early morning hours of February 6 the wind was about force 7 on the Beaufort Scale, *fn1" and the vessel reduced its speed. At about 1400 hours on February 6, the McGregor steel hatch cover on the No. 1 cargo hold (the forwardmost hold) failed, and the hold flooded. At that time the ship was sailing into the storm and the wave action on the forward part of the ship was such that the Master had to reverse course and reduce the vessel's speed by one half in order to be able to lead a party forward to examine the hatch cover and No. 1 hold. It was discovered that two sections of the hatch cover had been twisted open and had been thrown on the deck. The hold was filled with water and the hatch cover could not be reclosed. Three hours later the Master turned the ship back into the wind and resumed his course towards Japan. About this time the ship's crew began pumping water out of No. 2 and No. 3 cargo holds and No. 2 and No. 3 double bottoms. Ten hours later (0500 hours on February 7 the Master ordered the crew to stand by to abandon ship and ordered S.O.S. signals sent. At 0815 hours the order was given to abandon ship. Thereafter the vessel gradually went down by the head and sank. Twenty members of the crew were saved by a ship responding to the S.O.S., but all of the ship's records were lost.


 The applicable law is contained in the Carriage of Goods by Sea Act (Cogsa). 46 U.S.C. §§ 1300-15. Under Cogsa plaintiff established a prima facie case by showing that the scrap was loaded on board the ANTONIO DEMADES and that it was not delivered. After such a showing the burden is on the carrier "to bring itself within an excepted cause [under Cogsa] or to prove it exercised due diligence to avoid and prevent the harm." Lekas & Drivas, Inc. v. Goulandris, 306 F.2d 426, 429 (2d Cir. 1962). If the carrier establishes that it falls within such an exception under 46 U.S.C. § 1304(2), the cargo owner must then establish that the vessel was unseaworthy and that the unseaworthiness was at least a concurrent cause of the loss. If the cargo owner establishes that, the carrier can still avoid liability if it shows that it exercised due diligence in an attempt to make the ship seaworthy. 46 U.S.C. § 1304(1); In re Grace Line Inc., 517 F.2d 404 at 406 (2d Cir. May 19, 1975); Director General v. S.S. Maru, 459 F.2d 1370 (2d Cir.), cert. denied, 409 U.S. 1115, 93 S. Ct. 898, 34 L. Ed. 2d 699 (1972); J. Gerber & Co. v. S.S. SABINE HOWALDT, 437 F.2d 580, 588 (2d Cir. 1971); G. Gilmore & C. Black, Law of Admiralty § 3-43, at 183-85 (2d ed. 1975).


 Defendant urges that two statutory exceptions absolve it of liability. *fn2" First, it suggests that the storm encountered by the ANTONIO DEMADES in the North Pacific was so severe that it constituted a peril of the sea. See 46 U.S.C. § 1304(2)(c). Second, it argues that the loss was due to an act by, or the neglect of, the master in the navigation or management of the ship. See 46 U.S.C. § 1304(2)(a).


 The Court does not believe that the storm encountered by the ANTONIO DEMADES was a peril of the sea. The evidence indicated that storms such as the one involved here were common occurrences during the month of February in this area of the North Pacific. Indeed, at trial defendant's expert meteorologist testified that this storm was not even the worst storm of that month. Of course, the fact that such a storm should have been anticipated does not mean that the storm cannot have been a peril of the sea. However, in this case the court does not believe that the winds and sea encountered by the ANTONIO DEMADES were of such magnitude to constitute a peril of the sea.

 Each side called an expert meteorologist who prepared exhibits showing the wind, sea, and swell conditions in the area of the North Pacific where the ANTONIO DEMADES sank. These exhibits were based on weather data that consisted largely of readings taken by other ships in the general vicinity of the ANTONIO DEMADES. According to custom, these readings were taken every six hours. Thus, the weather data most relevant to the conditions faced by the ANTONIO DEMADES when the hatch gave way at 1400 hours on February 6, 1970, were the readings taken at 1100 hours and 1700 hours on that date.

 The two experts (Robert Raguso for the plaintiff and William Kaciak for the defendant) offered conflicting versions of the weather faced by the ANTONIO DEMADES at both 1100 hours and 1700 hours. Much of this difference can be explained by two factors. First, the two experts placed the ship in different positions. Kaciak assumed that the ship was in the same location (i. e., the S.O.S. position) at 1100, 1700, 2300 hours on February 6 and 0500 hours on February 7 while Raguso assumed that the ship gradually reached the S.O.S. position from points to the southeast. Second, Kaciak erred when he plotted the position of the ship. His exhibits indicate that he meant to place the ship at 33 degrees, 15 feet N, 157degrees, 30feet E, but close examination of the exhibits he prepared shows that he mistakenly placed the ship about 20 minutes to the north of that location.

 In Raguso's opinion, at 1100 hours the ANTONIO DEMADES was encountering sustained winds from the west northwest of 40-45 knots (Beaufort force 8-9) and seas of 15 feet from the same direction. Kaciak thought that the ship encountered winds of 50 knots (force 10) and seas of 16 feet. If the ANTONIO DEMADES had been correctly plotted on Kaciak's chart, it appears that the ship would be experiencing sustained winds of about 47-48 knots (highest force 9 -- lowest force 10) and seas of about 15 feet. At 1700 hours Raguso thought that the winds were at 40 knots (force 8) and that the seas were at 15 feet. Kaciak testified that the winds were at 50 knots and the seas at 26 feet. Kaciak's chart (corrected for the plotting error) shows winds of 47-48 knots and seas of 19 feet. Second Officer Gregos stated in his deposition that the wind was blowing at about force 9-10 while he was on the bridge from 1200 hours to 1600 hours. *fn3"

 While no one will ever know exactly where the ship was at 1100 and 1700 hours on May 6, the court finds that the positions assumed by Raguso are more accurate than those assumed by Kaciak. It seems unlikely that the ship made no headway in the 18 hours preceding the sending of the S.O.S. While it is true that the ship reversed course between 1400 and 1700 hours on February 6, Gregos testified that the ship's speed during that period was about 30-50 RPMs while its speed in the other direction prior to 1400 hours and subsequent to 1700 hours was 80 RPMs. Thus, the court finds that Raguso's estimate of the weather faced by the ANTONIO DEMADES to be more accurate, and concludes that during the period of time when the No. 1 hatch failed the ANTONIO DEMADES did not encounter sustained winds in excess of the upper extent of force 9. It should be noted that even if defendant's evidence was accepted, the winds would only be at the lowest levels of force 10. Moreover, the seas found by both Raguso (15 feet) and Kaciak (15-19 feet) are within the range of normal expectation for force 9 winds.

 The question therefore becomes whether force 9 winds constitute a peril of the sea. I do not think that they do in the circumstances of this case. While it is probably impossible to define precisely the term "peril of the sea," in J. Gerber & Co. v. S.S. SABINE HOWALDT, 437 F.2d 580, 594-97 (2d Cir. 1971), Judge Anderson, after a comprehensive review of the cases that have attempted to define and apply the phrase, concluded that "[there] are, however, few cases in which the winds are force 9 or below (i.e., 54 land miles per hour or 47 knots) in which there has been found to have been a peril of the sea." 437 F.2d at 596.

 The winds encountered by the ANTONIO DEMADES were at most on the order of 47-48 knots. Under Judge Anderson's analysis these winds would not be such as to constitute a peril of the sea in the usual case.

 This result seems especially appropriate since none of the special circumstances discussed in the SABINE HOWALDT are present in this case. Thus, there is no reason to make it one of the rare exceptions to the general rule. The evidence indicated that the ANTONIO DEMADES did not encounter cross seas. (A cross sea occurs when the swell and sea are coming in different directions by 45 degrees or more). At most times the seas and swell encountered by the ANTONIO DEMADES came from the same direction and during the short period of time in which there was some divergence in direction, it was only about 22 1/2 degrees. There was no indication that the ship was being buffetted about unduly in the storm for a long period of time. Indeed, the hatch failure occured soon after the storm commenced. It appears that the ship was able to steer a steady course into the storm. Moreover, it does not appear that the wave that broke the hatch cover was abnormally large. *fn4" There were many other ships in this storm, some in areas where the storm was worse, yet none of them sank. *fn5"

 Thus, the court concludes that the factors and cases discussed in the SABINE HOWALDT opinion support rejection of defendant's peril-of-the-sea defense. Defendant did not satisfy its burden of establishing such a defense by a preponderance of the evidence, especially since its principal witness made erroneous assumptions concerning the ...

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