Temat: Carrier Defenses to Liability

COMMON LAW DEFENSES

The Supreme Court, in Missouri Pacific R.R. Co. v. Elmore & Stahl, 377 U.S. 134, 84 S.Ct. 1142 (1964), restated the common-law rule, “. . . that a carrier, though not an absolute insurer, is liable for damage to goods transported by it unless it can show that the damage was caused by ‘(a) the act of God (b) the public enemy; (c) the act of the shipper himself (d) public authority (e) or the inherent vice or the nature of the goods. . . ’ This rule, and the common law defenses, have been codified by the Carmack Amendment.” Secretary of Agriculture v. U.S.., 350 U.S. 162 (1956); Illinois Central R.R. Co. v. Buckley, 185 So.2d 427 (Sup.Ct. Miss. 1966). It has more recently been stated that “the law raises against the carrier a conclusive presumption of misconduct, or breach of duty, in relation to every loss not caused by excepted perils.” Convey-All Corp. v. P.I.E. , 120 Cal.App.3d 116, 174 Cal.Rptr. 443 (1981). See also Hall & Long v. Nashville Chattanooga R. Co., 80 U.S. 367, 20 L.Ed 594 (1872); Commodity Credit Corp. v. Norton, 167 F.2d 161 (3rd Cir. 1948)

BILL OF LADING EXCEPTIONS

The Uniform Straight Bill of Lading published in the NMFC for use by motor carriers states:

Sec. 1. (a) The carrier or the party in possession of any of the property described in this bill of lading shall be liable as at common law for any loss thereof or damage thereto, except as hereinafter provided.

(b) No carrier shall be liable for any loss or damage to a shipment or for any delay caused by an Act of God, the public enemy, the authority of law, or the act or default of shipper. Except in the case of negligence of the carrier or party in possession, the carrier or party in possession shall not be liable for loss, damage or delay which results: when the property is stopped and held in transit upon request of the shipper, owner or party entitled to make such request; from faulty or impassible highway, or by lack of capacity of a highway bridge or ferry; from a defect or vice in the property, or from riots or strikes. The burden to prove freedom from negligence is on the carrier or the party in possession.

ACT OF GOD

An act of God is generally defined as an occurrence without intervention of man or which could not have been prevented by human prudence. It must be such that reasonable skill or watchfulness could not have prevented the loss.