A cause of damage otherwise satisfying the established definition may be a peril of the sea even though caused by a shipowner’s negligence. Lord Herschell said: ‘If that which immediately caused the loss was a peril of the sea, it matters not how it was induced, even if it were by the negligence of those navigating the vessel.’ A shipowner owes the bill of lading holder a bailee’s duty of care and accordingly, construing the bill of lading contract as a whole, the shipowner could not rely on the ‘perils of the sea’ exception to oust his duty of care.
the words in a cancellation clause to ‘perils or danger and accidents of the sea’ bear the same meaning, as a matter of construction, in a bill of lading or contract of carriage as in an insurance policy.
The words ‘perils of the sea’: ‘do not protect, for example, against that natural and inevitable action of the wind and waves, which results in what may be described as wear and tear. There must be some casualty, something which could not be foreseen as one of the necessary incidents of the adventure. The purpose of the policy is to secure an indemnity against accidents which may happen, not against events which must happen.’
Lord Herschell, Lord Bramwell
(1887) 12 App Cas 503, [1887] UKLawRpAC 28
Commonlii
England and Wales
Cited by:
Cited – Cosco Bulk Carrier Co Ltd and Another v M/V ‘Saldanha’ C/P Dated 25/06/08 ComC 11-Jun-2010
The court considered the effect of a ship being taken by pirates at sea on the obligations in the charterparty contract. The insurers said that a claim for ‘average accident’ must include an element of physical damage – absent in this case.
Cited – Global Process Systems Inc and Another v Berhad SC 1-Feb-2011
An oil rig (The Cendor MOPU) was being transported from Texas to Malaysia. During the voyage, three of the four legs suffered damage. The insurers refused liability saying that the damage was the result of inherent weaknesses in the rig.
Held: . .
Cited – Volcafe Ltd and Others v Compania Sud Americana De Vapores Sa SC 5-Dec-2018
The claimant appellants, arranged shipment of bagged Colombian green coffee beans, stowed in 20 unventilated 20-foot containers from Panama to Rotterdam, Hamburg or Bremerhaven for on carriage to Bremen. The bill of lading for each consignment . .
Lists of cited by and citing cases may be incomplete.
Transport, Insurance
Updated: 01 December 2021; Ref: scu.416712