Keywords: Marine perils; dangers and accidents; force majeure; carrier’s liability; storm; cargo loss.

Marine Peril

Maritime carriage is an activity entailing an elevated level of risk. In performing voyages across various regions of the world, carriers encounter storm conditions capable of causing significant damage to both the vessel and the cargo. Containers going overboard, cargo shift and water ingress are frequent consequences of exposure to the elements. This raises a practical question: will the carrier be held liable, and how can the carrier defend itself?

International law provides rules that exempt the carrier from liability where marine perils occur. The category of marine peril covers a broad range of risks, including storm conditions. Article IV Rule 2(c) of the 1968 Hague-Visby Rules provides: Neither the carrier nor the ship shall be responsible for loss or damage arising or resulting from perils, dangers and accidents of the sea or of other navigable waters. The same provision lists, separately from marine perils, Act of God as an independent ground for exemption from liability. Similar rules are contained in Article 166(1) (2) of the Merchant Shipping Code of the Russian Federation.

To be exempt from liability, the carrier must prove that a danger or accident occurred during performance of the voyage. The assessment of whether a storm constituted a danger to the vessel or qualified as force majeure depends on multiple factors, which Russian courts assess differently.

Vessel’s Readiness for the Voyage

As a general rule of maritime practice, regardless of the trading area and weather forecast, a vessel must be ready, prior to departure, for any changes in weather, including storms. Seaworthiness–that is, the vessel’s fitness to safely perform the voyage with cargo and crew under the relevant conditions– is a key obligation of the carrier.

Legal scholarship notes: “The carrier is obliged, in advance and before the commencement of the voyage, to make the vessel seaworthy, that is, to ensure the vessel’s technical fitness for navigation, to properly man, equip and supply the vessel, and to put the holds and other spaces in which the cargo is carried into a condition that ensures the proper receipt, carriage and preservation of the cargo.”¹

To evidence seaworthiness, the vessel must be: in a technically sound condition; the navigational equipment and ship’s documents prepared and in order; the cargo properly secured and fit for carriage in clean and dry holds; and the crew informed of the shipboard work plan and instructed in the procedures to be followed in heavy‑weather conditions.

The general requirements for a vessel’s seaworthiness are set out in Article 124 of the Merchant Shipping Code of the Russian Federation and in Article III(1) of the Hague‑Visby Rules.

Thus, pursuant to paragraph 1 of Article 124 of the Merchant Shipping Code of the Russian Federation, the carrier is obliged, in advance and before the commencement of the voyage, to make the vessel seaworthy: to ensure the vessel’s technical fitness for navigation, to properly equip the vessel, to man it with a crew (save for a fully autonomous vessel) and to supply it with everything necessary, as well as to put the holds and other spaces of the vessel in which the cargo is carried into a condition ensuring the proper receipt, carriage and preservation of the cargo.

Moreover, paragraph 2 of Article 124 of the Merchant Shipping Code of the Russian Federation provides that the carrier shall not be liable for the vessel’s unseaworthy condition if the carrier proves that such unseaworthiness was caused by defects which could not have been discovered with the exercise of due diligence (latent defects).

Legal doctrine has indicated that “the carrier is not subject to an absolute obligation to make the vessel seaworthy. The carrier need only exercise due diligence to achieve that result. A modern seagoing vessel is a complex engineering structure, and the carrier is not in a position to ensure the making of the vessel seaworthy on its own. Therefore, in many cases the carrier engages competent persons who perform the duties imposed on the carrier. All such persons, in performing the duties entrusted to them by the carrier, must likewise exercise due diligence, and the carrier will bear responsibility for their omissions” <*>.²

Nevertheless, in all cases the burden of proof rests with the carrier: it is the carrier who must establish that the vessel’s unseaworthiness was caused by latent defects which could not have been discovered with the exercise of due diligence on its part.³

An analysis of Article 124 of the Merchant Shipping Code of the Russian Federation indicates that the burden of proving that the vessel’s unseaworthy condition was caused by latent defects rests with the carrier. This requires that two conditions be satisfied: first, the carrier must prove that it exercised due diligence to ensure the vessel’s seaworthiness; and, second, that the defect could not have been discovered even with the exercise of such diligence.

With respect to the vessel’s seaworthiness and the taking of necessary measures to ensure the preservation of the cargo in heavy‑weather conditions, the burden of proving these facts likewise rests with the carrier. The proof is directed at establishing that the vessel was in proper working order at the time of departure. In addition, the carrier must prove that it maintained proper supervision over the cargo and that the crew acted in accordance with clear instructions.

In the Russian Federation, special rules govern the maritime carriage of goods which are mandatory for carriers. Among them are the Rules on the Safety of Maritime Carriage of Goods approved by Order No. VR-1/p of the Ministry of Transport of Russia dated 21 April 2003 (hereinafter referred to as the Rules).

Where deficiencies are identified in the course of inspecting the condition of cargo during the voyage, p. 67 of the Rules imposes on the crew a duty to remedy them and, where necessary, to apply additional securing of cargo (e.g., re-tensioning lashings, re-fitting and nailing wedges, installing additional dunnage, etc.).

Navigation in heavy‑weather conditions requires heightened vigilance on the part of the master and crew. The primary objective is to minimise adverse effects on the vessel, including slamming, whipping, and severe rolling. Erroneous decisions may result not only in the loss of or damage to cargo, but also in catastrophic consequences for the vessel itself.

From Article 167 of the Merchant Shipping Code of the Russian Federation (RF MSC) it follows that the carrier shall be exempt from liability for loss of cargo where there have occurred errors of the crew in the navigation or in the management of the ship, consisting of acts or omissions by crew members committed in the navigation or handling of the vessel and not confined solely to the improper operation of shipboard systems and machinery.

An error in navigation may consist in incorrect fixing of the vessel’s position, improper manoeuvring, violation of the International Regulations for Preventing Collisions at Sea (COLREGs), disregard of good seamanship, and the like. An error in management is usually associated with the operation of various shipboard systems. For example, damage to cargo resulting from the ingress of water into a hold will be regarded as an error in management if it occurs due to incorrect actions of the ship’s crew.

Accordingly, wrongful actions of the crew do not preclude the carrier’s exoneration on the basis of a navigational error.

Case law has developed an approach whereby a shipowner may rely on the navigational‑error defence only if it has exercised due diligence, in a timely manner, to make the vessel seaworthy. An unseaworthy condition of the vessel precludes exoneration for a navigational error. Thus, in one case the court of appeal, when considering a claim against the carrier, applied Article 167 RF MSC on the ground that it was the untimely and incorrect actions of the crew that led to the shipwreck, while the defendant proved the vessel’s seaworthiness prior to the commencement of the voyage.⁴

In another case, the master, having received an adverse weather forecast, decided to ride out the storm in a bay; while manoeuvring at the entrance to the bay the vessel struck coastal rocks with the starboard quarter. As a result of the impact, the vessel sustained three breaches and almost completely sank, and all the cargo (grain) was spoiled by sea water. On the basis of the evidence in the record (out‑of‑court expert opinions, surveyors’ acts and reports, opinions/reviews, incident reports, and the master’s and crew’s reports and explanations, etc.), the court applied Article 167 RF MSC and concluded that a navigational error had been committed by the master in manoeuvring on entry into the bay and that there was a causal link between that error and the loss of the vessel together with the cargo.⁵

This case law shows that building a defence strategy solely on proving the vessel’s seaworthiness is misguided: that fact, by itself, does not exonerate the carrier; it is merely a precondition for the commencement of the voyage. Conversely, lack of seaworthiness entails the carrier’s liability (save where the carrier proves that the unseaworthiness was caused by latent defects not discoverable with the exercise of due diligence; Article 124(2) RF MSC).

The cases considered demonstrate that, in each instance, it is necessary, inter alia, to establish the causal link between the event and the damage to or loss of cargo, as the subsequent legal characterisation depends on it. Thus, wetting of cargo by sea water due to improper securing of the cargo or failure to close the hatch covers before the commencement of the voyage may be characterised as unseaworthiness of the vessel and entail liability under Article 124 RF MSC. By contrast, if the ingress of sea water is attributable to the vessel’s encounter with a heavy sea and the carrier exercised due diligence in relation to the cargo, the situation may be assessed as an error in the management of the ship (a navigational error) within the meaning of Article 167 RF MSC, resulting in the carrier’s exoneration.

It should be noted that establishing that the cargo was properly secured, that all possible measures were taken to ensure its preservation, and that instructions were complied with in heavy‑weather conditions is a complex evidentiary task. Courts frequently reject carriers’ arguments, reasoning, inter alia, as follows: (1) when placing and securing cargo for carriage, the defendant was obliged to assess the degree of hazard of storm navigation in view of the actual parameters of following seas, water depth and wave approach angle and, taking these factors into account, to arrange the cargo in a manner that precluded its damage; (2) during the voyage the defendant was obliged to monitor stability by the period of the vessel’s rolling, to check the cargo condition, to take measures to eliminate detected deficiencies and, where necessary, to apply additional securing of cargo.⁶

Determination of Weather Conditions in the Trading Area

Another argument advanced by carriers consists in proving the existence of storm conditions (force majeure) at the time the cargo was lost. However, storm conditions is a relative concept: for some vessels a low sea may be hazardous, while for others it is readily manageable. As a rule, the design characteristics of seagoing vessels enable them to withstand substantial sea states.

Modern vessels have access to the internet (primarily via satellite systems) and monitor weather information in real time. Weather conditions are continuously monitored on board. The vessel has access to forecasts and meteorological warnings (including storm warnings), thereby enabling the master to take appropriate measures for the safe conduct of the voyage.

The Beaufort scale, developed in the early nineteenth century and still in use today, classifies wind on a 12-point scale: 8-9 correspond to storm, 10 to strong storm, 11 to violent storm, and 12 to hurricane. Each point is accompanied by descriptions of observable effects on land and at sea. To assess sea state, several scales are used (British, American, Russian), based on the parameter of significant wave height (SWH). On the 10-point sea state scale, 0 corresponds to calm, and 9 to phenomenal seas (SWH > 14 m).

In proving storm conditions, wind force under the Beaufort scale and significant wave height (SWH) are material. However, these indicators alone are insufficient to establish a marine peril.

Legal doctrine distinguishes marine perils (dangers or accidents at sea) from force majeure: unlike force majeure, they are not always characterized by extraordinariness and irresistibility; it may suffice that the event was fortuitous and could not have been foreseen by the carrier exercising due care. In doing so, various factors are taken into account, including wind force, the vessel’s geographic position, the season, the duration of exposure, damage caused not only to the cargo but also to the vessel (if any), and, importantly, foreseeability.⁷

Analysing U.S. and English case law, W. Tetley also noted that the qualification of marine perils depends on the geographic area of navigation, the master’s awareness of expected conditions, and the carrier’s exercise of due care for the cargo.⁸

Accordingly, the carrier bears an additional burden to prove the exceptional and sudden nature of weather conditions in the relevant area.

Storm as Danger and Accident (Case Law)

An analysis of Russian case law shows that courts rarely exempt carriers from liability under Article 166(1) of the RF MSC, adhering to a strict approach to the burden of proving the existence of a marine peril (danger or accident at sea).

Example of applying the due care for cargo criterion. In a case concerning recovery of damages caused by damage to containers, the court, granting the claim, held that the existence of a storm (wind 15-20 m/s; wave height 3-4 m. in the Yellow Sea) was not, by itself, a sufficient ground to exempt the carrier from liability for damage to tank containers. Relief under Article 166(1) of the RF MSC was denied on the following grounds: (1) the carrier was obliged to foresee the possibility of sea state, which in itself does not constitute extraordinary and unavoidable force majeure circumstances and does not amount to such a danger or accident at sea that could not have been foreseen; (2) exercising due care and prudence, the carrier was obliged, in accordance with the contract, to ensure the operability and reliability of the vessel’s closing and securing devices, to take measures for reliable securing of the cargo, and to prevent shifting and damage to containers during carriage.⁹

Awareness of forecast weather conditions precludes qualifying an event as a danger or accident at sea for purposes of exempting the carrier from liability. Courts, as a rule, reject references to a storm as a marine peril on the following grounds: (1) the existence of official weather reports, storm warnings and other meteorological data negates the unforeseeability of the event and thus the applicability of accident at sea; (2) operating a seaworthy vessel equipped with means of receiving meteorological information imposes on the carrier a duty to monitor weather; in such conditions a storm cannot be treated as an accident exempting from liability; (3) weather conditions within the bounds of reasonable forecasting on the route and in known seasonal conditions are not extraordinary and are not qualified as dangers at sea.¹⁰

Consequently, documented awareness by the master of actual and forecast weather conditions, and ongoing monitoring of their changes, preclude qualification of an event as a danger or accident at sea as a ground for exemption from liability under Article 166 of the RF MSC.

Sea state as such does not constitute a danger or accident at sea. In one case the court stated: As a general rule, sea state in itself cannot be recognized as a danger or accident during a sea passage that could reasonably justify exemption from liability for cargo loss. Thus, reliance on deterioration of weather conditions recorded in the sea protest and the logbook (a wave striking the starboard shoulder causing the top tier of containers to fall in BAY 36, with overall wave height of 3–3.5 m and wind 18 m/s) does not meet the criteria of an accident at sea or a danger beyond reasonable forecasting of the voyage in approximately known weather conditions, provided that a combination of proper measures for securing deck cargo has been taken.¹¹

Storm as Force Majeure (Case Law)

A sudden and short\endash term deterioration of weather by itself does not constitute force majeure. In one case, the claimant submitted hydrometeorological data on wind speed and wave height, on the basis of which the court awarded damages. Agreeing with the claimant, the court held: A meteorological event in the form of a sudden, short\endash term increase in wind up to 14 m/s cannot be regarded as force majeure, since it did not cause a natural emergency or natural disaster and was not of an unavoidable nature.¹²

Adverse weather conditions do not demonstrate absence of the carrier’s fault. In another case, a sea protest was produced confirming adverse weather conditions during carriage that resulted in damage to a container. The court found that a storm had occurred, but nevertheless granted the claim, stating: (1) a storm, by itself, is not force majeure; the carrier remains under a duty to take necessary safety measures; (2) the sea protest does not establish the applicability of the grounds for exemption from liability under Article 166 of the RF MSC; (3) the carrier failed to prove that the storm was the sole and exclusive cause of the container’s damage.¹³

Force majeure is characterized by objective, not subjective, unavoidability. In a case concerning damages resulting from container collapse, the court granted the claim and held: (1) the extraordinary nature of force majeure does not permit any life circumstance to be classified as such; its distinction from a fortuity lies in objective, not subjective, unavoidability; (2) a storm, by itself, does not constitute force majeure given the availability of weather forecasts and the possibility of taking measures in advance to ensure safe berthing and other precautions; (3) the existence of a storm does not automatically establish causation with the cargo loss; the carrier remains obliged to take safety measures at sea.¹⁴

Previously, the Supreme Court of the Russian Federation noted that unpredictability is a key attribute of force majeure. Weather conditions that occur systematically in a certain area or season do not possess this attribute.¹⁵

Conclusions

Case law and legal doctrine confirm that storm conditions, by themselves, do not constitute a ground for exonerating the carrier from liability. The loss of or damage to cargo in storm conditions imposes on the carrier, first, a heightened evidentiary burden to prove seaworthiness and the existence of grounds for exoneration, and, second, the need to adopt an appropriate defence strategy tailored to the specific events. The basis for this proposition is set out in the following conclusions:

1) the category of «dangers or accidents at sea» is assessed with regard to the specific circumstances of the case;

2) the presence of official meteorological data excludes the possibility of invoking accident at sea as a basis for exemption in view of the lack of unforeseeability;

3) building the carrier’s defence strategy solely on proving the vessel’s seaworthiness is misguided: that fact, by itself, does not exonerate the carrier from liability; it is merely a precondition for the commencement of the voyage;

4) in each particular case it is necessary, inter alia, to establish the causal link between the event and the damage to or loss of cargo–the subsequent legal characterisation depends on it (as shown above, the same event may be characterised either as unseaworthiness under Article 124 RF MSC or as a navigational error under Article 167 RF MSC);

5) providing the carrier with a seaworthy ship equipped with means of receiving meteorological information excludes classification of the event as an accident at sea as a ground for exemption;

6) weather conditions within the bounds of reasonable forecasting on the relevant route and in known seasonal conditions are not extraordinary and are not qualified as dangers at sea;

7) as a general rule, sea state in itself is not recognized as a danger or accident sufficient to exempt from liability for cargo loss;

8) the burden of proving that, due to the storm, it was impossible to ensure preservation of the cargo and that the damage occurred as a result of circumstances the carrier could not prevent while exercising due care rests with the carrier. ■

Notes