Such as the conclusion of the Inquiry into the loss of the Waratah. In our modern era legislation relating to vessels encountering heavy weather includes both the 'unforeseen' and 'unavoidable', allowing shipping lines to prevail upon the 'peril at sea' defence under the Carriage of Goods by Sea Act ('COGSA'). The legislation includes negligence on the part of the master (and shipping line) if action to avoid a storm is not taken.
For a storm to be categorised as a 'peril of the sea' it must:
"be of an extraordinary nature or arising from irresistible force or overwhelming power which could not be guarded against by the ordinary exertions of human skill and prudence" (Honorable Kurt Engelhardt of the United States District Court for the Eastern District of Louisiana).
Central to this issue is the intensity of the storm and the weather conditions which would normally be expected in the geographic area at that time of the year. For a storm to constitute a 'peril of the sea' for purposes of the COGSA exemption, the weather encountered must be so severe as to be too much for a well-found or seaworthy vessel to withstand. To sustain the defence, Judge Engelhardt noted that the jurisprudence required the carrier to show:
1) the severity of the storm was sufficient to constitute a 'peril of the sea'.
2) a causal connection between the cargo loss and the 'peril of the sea'.
3) the carrier's freedom from fault and that the ship was not unseaworthy.
Factors that need to be taken into account include:
- structural damage to the ship;
- the force of wind and the height and violence of the seas;
- the duration of time the ship encountered heavy weather;
- the foreseeability of the heavy weather for the given location and time of year;
- the size and type of vessel.
Cargo must be stowed in conformity with the stowage plan. Furthermore, the master of the vessel is expected to closely monitor the weather throughout the voyage and implement course and speed changes in an attempt to avoid the worst of the deteriorating weather and to minimize its impact on his vessel. In the case of the vessel "Atlantic Forest", 2002, surveyors documented extensive damage to the vessel’s forecastle, including:
- damage to the propeller hub,
- anchor windlass,
- vent pipes.
The heavy seas had:
- pushed in the bulkhead to the forward house, bending the steel plating and steel beams.
- various portals, hand rails and water tight doors were damaged.
- various areas inside the ship’s accommodation had been flooded
- the stores crane and boom were dented and distorted.
In the absence of this substantial damage to the ship, the 'peril of the sea' defence would not have been sustained.
This modern day case highlights a number of issues relating to the fate of the Waratah. Captain Ilbery would have been conscious of the severity of the approaching storm based on a number of factors including the time of year (frequency of frontal systems), the coast in question (notorious storms), the changing seas (27 July) and his barometer readings. The cargo in all likelihood would have been well stowed according to the stowage plan of the Waratah. If Captain Ilbery had believed his vessel to be seaworthy (like many other vessels at sea on the 27 and 27 July) would have taken all precautions but continued on course for Cape Town.
If this legislation had applied in 1909, Captain Ilbery would have been obliged to turn about and attempt to avoid the storm. However, if the Waratah was not seaworthy at the time (eg. taking on water or a coal fire causing structural damage) he may very well have elected to turn around after departing the Clan MacIntyre, a sensible decision.
The damage sustained by the "Atlantic Forest" in this case example, is sobering. This was a seaworthy, modern day vessel, assaulted by a harsh sea. It is clear even if the Waratah had been seaworthy and sound, she may still have sustained very significant (possibly fatal) damage in a 'storm of exceptional violence', even in the absence of a freak wave. The sea can be a fiercely dangerous and unforgiving environment, despite man's best efforts.