A term of maritime insurance contracts, typically an insurable risk and thus, often hotly contested by insurers.
While insurers insure against loss resulting from perils of the sea, the term has been defined by Justice Bramwell in Hamilton Fraser:
"A peril of the sea ... is a sea damage, occuring at sea and nobody's fault.
"What is the peril? It is that the ship or goods will be lost or damaged; but it must be of the sea. Fire would not be a peril of the sea. So of lightning."
In 1887, writing in Xantho, Justice Herschell wrote that in order to constitute a peril of the sea:
"... there must be some casualty, something which could not be foreseen as one of the necessary incidents of the adventure....
"It must be a peril of the sea.
"Again, it is well settled that it is not every loss or damage of which the sea is the immediate cause that is covered by these words. They do not protect, for example, against that natural and inevitable action of the winds 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.
"It was contended that those losses only were losses by perils of the sea, which were occasioned by extraordinary violence of the winds or waves. ... This is too narrow a construction of the words, and it is certainly not supported by the authorities or by common understanding."
In Kruger, Justice Pinard wrote:
"... perils of the sea ... in relation to damage to goods carried on a vessel, must be perils which could not be foreseen or guarded against as probable incidents of the intended voyage."
REFERENCES:
- Duhaime, Lloyd, Legal Definition of Act of God
- Duhaime, Lloyd, Maritime Law - A Glossary
- Goodfellow (Charles) Lumber Sales Ltd. v Verreault et al., 1971 SCR 522; also at 17 DLR 3d 56
- Hamilton, Fraser & Co. v Pandorf & Co. 12 AC 518, at pages 526-527 (1887)
- Keystone Transports Limited v. Dominion Steel & Coal Corporation, Limited 1942 SCR 495, also published at 4 DLR 513 or at 55 CRTC 221
- Kruger Inc. v Baltic Shipping 1 FC 262 (1988)
- Wilson, Sons & Co. v Xantho 12 AC 503 (1883)