The opinion of the court was delivered by: LASKER
Royal Insurance Company, Ltd. sues as cargo underwriter to recover for damage to a shipment of one hundred and two jeep pickup trucks transported aboard the S. S. Maracaibo during late September and early October 1975 from Baltimore, Maryland to La Guaira, Venezuela.
At trial, Royal Insurance was held to have proven a prima facie case of liability
establishing that the jeeps were received aboard the Maracaibo in good condition and unloaded in damaged condition, and that Royal Insurance's agents had paid the owner of the jeeps for their damage (Tr. 32-33).
Defendants raise the "peril of the sea" defense, Carriage of Goods By Sea Act (COGSA), § 4(2)(c), 46 U.S.C. § 1304(2)(c), contending that the Maracaibo was required to travel through a severe hurricane which caused the damage to the jeeps. Royal Insurance responds first, that, based on the failure to prove structural damage to the Maracaibo, the ship passed through an area of the storm not sufficiently severe to constitute a peril of the sea, and second, that the ship was nevertheless unseaworthy because the jeeps were stowed and secured negligently. Specifically, Royal Insurance argues that some of the jeeps were stowed aburton rather than fore and aft, that some were stowed on top of other cargo separated by unacceptably thin plywood flooring, and that the securing of the jeeps was negligent because of the alleged failure to use drop shoring, appropriate wedges, and lashings.
The "peril of the sea" defense is codified at section 4(2)(c) of COGSA, 46 U.S.C. § 1304(2)(c), which provides:
"(2) Neither the carrier nor the ship shall be responsible for loss or damage arising or resulting from
(c) Perils, dangers, and accidents of the sea or other navigable waters;"
This exception to liability has been defined by the Second Circuit as
"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."
The Giulia, 218 F. 744, 746 (2d Cir. 1914), quoted in R. T. Jones Lumber Co. v. Roen Steamship Co., 270 F.2d 456, 458 (2d Cir. 1959) (storm found not unusual on Lake Erie in November not a peril of the sea); see Paul Marsh, Inc. v. S. S. Johann Blumenthal, 455 F. Supp. 236, 237 (S.D.N.Y.1978) (one wave ten meters high during storm with winds of 9 to 10 constituted sea peril); American International Insurance Company v. The Vessel SS Fortaleza, 446 F. Supp. 221, 225-26 (D.P.R.), aff'd per curiam, 585 F.2d 22 (1st Cir. 1978) (wind force of 10 and waves of 40 feet together with "pounding" constituted sea peril); Yawata Iron & Steel Co. v. Anthony Shipping Co., 396 F. Supp. 619, 623 (S.D.N.Y.1975), aff'd mem., 538 F.2d 317 (2d Cir. 1976) (force 9 winds not a sea peril); Freedman & Slater, Inc. v. M. V. Tofevo, 222 F. Supp. 964, 969 (S.D.N.Y.1963) (storm not unusual for area at time not a sea peril when little damage to the ship reported).
The evidence amply supports defendants' contention that the ship encountered a peril of the sea in the form of Hurricane Gladys on October 2, 1975. The master of the Maracaibo, Captain Jose Machado Martinez, testified by deposition on October 11, 1979, part of which was read into the record at trial, that on October 2nd, while passing through the worst of the storm the ship experienced, the Maracaibo was subjected to wind force of 11 to 12 (velocity over 100 miles per hour) and sea force of 9 (waves over 15 meters high) (Tr. 69-71). This testimony was buttressed by the ship's log (Defendants' Exhibit A-2, pp. 6-7) and the United States Mariners Weather Log, a publication of the United States Department of Commerce (Defendants' Exhibit I), both of which indicate that the ship encountered wind force of 11 to 12 and sea force of 9, and by the weather advisories received by the ship reporting sustained winds near the center of the storm as high as 105 knots with gusts to 125 knots (Advisory No. 31 dated October 2, 1975) (Defendants' Exhibit C). The Mariners Weather Log further attests to the severity of the storm, noting that the barometric pressure was "one of the lowest recorded pressure in a hurricane that far north" (p. 72). Finally, defendants' weather expert, Walter Zeltmann, a meteorological consultant, testified that the storm was "extremely well organized and severe" (Tr. 92), that the ship came closest to the eye of the storm on October 2nd, that the distance from the eye at that time was 20 to 40 nautical miles (Tr. 95, 134),
that the ship encountered winds of about 100 knots (Tr. 101) and of at least gale force for eight hours and hurricane force (64 knots or higher) for about four to five hours (Tr. 104), and that the sharp drop in pressure reported by the ship and published in the Mariners Weather Log (p. 73) indicates that the ship experienced "very strong winds" (Tr. 104).
Royal Insurance's contention that the ship did not experience weather sufficiently severe to constitute a sea peril is based on the testimony of its expert witness, Captain John Cain. In Captain Cain's opinion "(t)his storm was not as bad as described" by defendants' witnesses because the damages reported by the ship (Defendants' Exhibits E, F, G) did not include the type of damage normally experienced by a ship passing through a severe hurricane (Tr. 308). Specifically, he testified that he would have expected to have seen included in the reports "damage to glass, damage to windows, damage to portholes, lower decks, main decks, even up on the bridge . . . damage to . . . lifeboats that sit out there unprotected on the top . . . (and) bottom damage" due to "pounding" (Tr. 306-07).
Although Royal Insurance is correct that damage to the ship is a consideration in determining whether the ship passed through a storm sufficiently severe to constitute a sea peril. Freedman & Slater, Inc. v. M. V. Tofevo, supra, 222 F. Supp. 964, 969 (S.D.N.Y.1963), it is only one factor to be assessed together with the weather and seas reported to have been encountered by the ship, R. T. Jones Lumber Co. v. Roen Steamship Co., supra, 270 F.2d 456, 458 (2d Cir. 1959), the size of the ship, American International Insurance Co. v. The Vessel SS Fortaleza, supra, 446 F. Supp. 221, 226 (D.P.R.), aff'd per curiam, 585 F.2d 22 (1st Cir. 1978), and the distance travelled at the time, Freedman & Slater, Inc. v. M. V. Tofevo, supra, at 968.
Here defendants have introduced testimony of witnesses to the events, documentary records made contemporaneously which there is no reason to doubt, and expert evidence establishing the severity of the storm experienced by the Maracaibo. Captain Cain testified on cross examination that the ship travelled a relatively small distance (72 miles compared to a usual 220 miles during normal weather for the same period) during the storm (Tr. 363-65). Against this evidence the testimony of Captain Cain refutes only one factor and does so on the basis of theoretical inference from the damage reports. Moreover, the damage reports on which he relies do show that the Maracaibo, having undergone over $ 33,550. worth of repairs which took eleven days to complete, suffered damage considerably more severe than what would occur on a routine voyage.
Accordingly, we find that the Maracaibo passed through weather sufficiently severe to constitute a sea peril within the meaning of COGSA § 4(2)(c), 46 U.S.C. § 1304(2)(c).
II. Stowage and Securing of the Jeeps
To meet its burden of showing that the jeeps were safely stowed and secured, defendants introduced the deposition testimony of the captain of the Maracaibo and some of its seamen who worked at stowing and securing the cargo as to the method of stowing and securing the jeeps, and the expert testimony of Paul Keeler who gave his opinion that the jeeps were safely stowed and secured (Tr. 199). Royal Insurance contends that the jeeps were negligently stowed and secured in that some were stowed aburton, ...