           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT United States Court of Appeals
                                                   Fifth Circuit

                                                                            FILED
                                                                         October 18, 2007

                                       No. 06-30205                   Charles R. Fulbruge III
                                                                              Clerk

CORUS UK LTD; CORUS AMERICA INC.,

                                                  Plaintiffs-Appellants,
v.

WATERMAN STEAMSHIP CO.; LCI SHIPHOLDINGS INC., in personam,

                                                  Defendants-Appellees.


                   Appeal from the United States District Court
                       for the Eastern District of Louisiana
                                   2:04-CV-1553


Before GARWOOD, JOLLY, and STEWART, Circuit Judges.
PER CURIAM:*
       Plaintiffs-Appellants Corus UK LTD and Corus America Inc. (“Corus”)
filed suit against Defendants-Appellees Waterman Steamship Co. and LCI
Shipholdings Inc. (“Waterman”) under the Carriage of Goods by Sea Act, 46
U.S.C. § 1300 et seq. (“COGSA”), seeking recovery for damage to cargoes carried
aboard one of Waterman’s vessels from Rotterdam to New Orleans during the
winter of 2004. After a bench trial, the district court entered judgment in favor
of Waterman, finding that Waterman successfully proved that the damage to



       *
         Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
                                  No. 06-30205

Corus’s cargo was proximately caused by severe weather constituting “perils of
the sea” within the meaning of the COGSA sea perils defense. 46 U.S.C. Appx.
§ 1304 (2)(c). Corus timely appealed.
      Corus argues on appeal that Waterman failed to carry its burden of
proving the sea peril defense and that the district court’s finding to the contrary
constituted reversible legal error. In admiralty cases tried by the district court
without a jury, we review the district court’s legal conclusions de novo and its
factual findings under the clearly erroneous standard. Steel Coils, Inc. v. M/V
Lake Marion, 331 F.3d 422, 426 (5th Cir. 2003).
      Under COGSA, the carrier and the carrying vessel are not liable for any
cargo damage or loss proximately caused by perils of the sea. For a storm to
constitute 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 ordinary exertions of human skill and prudence.” Id. at 435.
      The district court, after a bench trial, and in a comprehensive oral opinion
made the following findings: (1) the vessel was seaworthy and fit for the voyage;
(2) the cargo was properly stowed and secured in accordance with Corus’s
instructions; (3) the captain of the vessel was not negligent, and demonstrated
reasonable and prudent efforts to avoid the unforeseeable heavy weather; (4) the
vessel experienced heavy damage from the weather encountered on the voyage;
(5) the vessel experienced Beaufort 10 winds and seas on November 20 from
0600 until 2400; it experienced Beaufort 12 winds and sea conditions from 0000
to 0600 on November 21; the ship continued to experience Beaufort 10 and 12
winds and seas throughout the remainder of November 21; and (6) that the
speed and severity of this particular storm was not foreseeable. The district
court noted that its findings of the force of the wind and the height and violence
of the sea rested on the credibility of the witnesses presented by the two parties.
The district court credited the testimony of the vessel’s captain, offered by

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                                  No. 06-30205

Waterman, over the testimony of Corus’s weather expert. The district court
found persuasive the captain’s first hand knowledge of the weather conditions
and his training in meteorology and weather observation. Further, the district
court found the captain’s testimony bolstered by the anemometer readings. The
district court concluded that Waterman established that the severe weather
encountered was the proximate cause of the damage to Corus’s cargo, and
therefore, Waterman was entitled to the peril of the sea defense.
      This case was fully tried by the two parties, both having the benefit of
sophisticated counsel, and both presenting witnesses to testify on their behalf.
The lower court’s ruling indicates that it conducted a comprehensive analysis
of the evidence presented and demonstrates a thorough understanding of the
peril of the sea defense. Our independent review of the record does not show
that the district court erred in concluding that Waterman was entitled to the
peril of the sea defense. To the contrary, the record supports the district court’s
findings of unusual high winds and seas, damage to the ship, Waterman’s lack
of negligence, and its conclusion that the cargo was damaged because of a peril
of the sea. For these reasons, we AFFIRM.




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