The opinion of the court was delivered by: GOETTEL
Among the issues that are not capable of precise judicial determination, the question of how bad a storm must be before it constitutes "heavy weather" has to be one of the worst. Once found "heavy," of course, the weather is a "peril of the sea" that excuses a shipowner's liability for cargo damage. The problem is much like the one posed by the ancient riddle which asks "how high is up?" Long ago one court responded:
"There is no rule by which it can be defined with accuracy what degree of violence of the wind or waves is necessary to constitute a peril of the sea. Different cases must be determined according to their special circumstances."
The Frey, 106 F. 319 (2d Cir. 1901).
The determination, however, must nevertheless be made:
"The difficult task is not to define in general terms a peril of the sea, but to determine whether some established facts and circumstances, like those proved in this case, fall within a sound definition. These opinions may be at variance and give to close cases little value as precedents. Yet this situation obtains largely throughout the whole administration of justice because it is impossible to do away entirely with the human element in applying the law to the facts."
The defendant's vessel, the Hellenic Wave, a common carrier in international trade, loaded cargo during early 1978 in various east and south African ports. Among the cargo loaded was plaintiff Sprague & Rhodes' two containers of palletized tea, and plaintiff Kane International Corporation's cartons of cashew nuts. These cargoes were loaded in the # 3 hold, upper "tween deck, along with other cargo, including two sealed containers of empty freon bottles.
The vessel departed from South Africa bound for New York on January 29, 1978. On February 12th, while in the North Atlantic east of Bermuda, the vessel encountered a storm. For three days she proceeded at reduced speed and eventually had to hove to in order to ride out the storm.
When the storm abated, the ship's crew found that, in the # 3 upper "tween deck, three of the four containers (two with tea and one with empty freon bottles) had broken loose from the stow, causing damage to themselves and adjacent cargo. The containers of tea had been smashed, as had the entire face of the stow of cashew nuts. The empty freon cylinders had broken loose from the containers and were rolling about the deck with loose cashew nuts, tea, pallets and dunnage.
Plaintiffs' expert testified that, in his opinion, the gas cylinders could have broken loose from their containers first, thereafter knocking the tea containers loose, or that the cylinder containers themselves could have broken loose first, resulting in the same damage. In addition, the defendant's claim agent made an admission to the effect that the cylinders, not being secured within the container, had smashed through the side of the container and set off the other damage. His source of information for making such a statement, however, was never disclosed, and its accuracy is debatable. While it appears quite likely that only one container broke loose on its own, and that it in turn caused the other containers and cargo to break stow and become damaged, it is impossible to determine precisely which container initiated the loss.
The defendant produced an expert witness who attempted to demonstrate that the cargo was securely stowed and that the ship's loading was in all respects seaworthy. (This testimony, if believed, would be compelling evidence that the damage occurred because of an exceptional and unprecedented peril of the sea.) His conclusion, however, was based on several undocumented or highly questionable assumptions. The cargo had not been inspected by the Chief Mate immediately prior to the storm and its precise condition as it entered the storm is not known. (He did make an inspection several days earlier.)
The chief officer at his first deposition had made a drawing indicating how the containers were lashed. The next day, when he was deposed in the companion action (they were not yet consolidated), he changed his version of the lashing considerably. His initial description was demonstrably wrong. The accuracy of his second drawing is speculative. Moreover, even assuming the accuracy of the second diagram, it was impossible for an expert to give a definitive opinion concerning the lashings since the necessary components for calculating stresses were missing. The expert, who had not read the Chief Mate's deposition and proceeded only from information supplied by defendant's counsel, did not know the precise length of the lashings, nor did he know the angle of the lashings from the containers to the turnbuckles. He acknowledged that the lashings were not symmetrical in configuration, which is always desirable, and that there may have been tight lashings on one side and not the other, which could have caused the wracking of the containers. Consequently, little weight can be given to his conclusion.
Much of the testimony at trial revolved around the question whether the storm was so unexpectedly severe that it constituted heavy weather. The rough log kept contemporaneously claimed Beaufort Scale forces of from 9 to 11. In the Captain's subsequently prepared smooth log he claimed winds of force 12. Based on all the evidence, including a substantial number of readings from other sources, we conclude that the storm's force was 9 to 10 on the Beaufort Scale a strong to heavy gale. If it ever reached force 11, it was only for a short period around noon on February 12th. Even the defendant's meteorological expert seemed to concede that the winds did not exceed force 10, although he claimed that the seas were unusually high for the amount of wind experienced. He also acknowledged, however, that estimates of sea height are often inaccurate and can be best calculated by knowing the winds.
The Chief Mate testified that the storm was the worst in which he had ever been involved. We must note, however, that the Chief Mate had spent his entire eight years at sea with the defendant shipline and he had risen from the rank of deck boy to become recently a chief officer. As Judge Hulbert suggested in Manuel Arnus, 10 F. ...