Carrier's 'Act of God' Defense Is All Wet

Q: We’re a trucking company with a big problem.

One of our terminals is in upstate New England, near what’s usually a small river. Well, as you may remember, Hurricane Irene came through this area recently like, well, like a hurricane, dumped tons of rain on New England, and everything flooded, including the river running past our terminal. We had several rigs parked there then, and both they and their loads were damaged badly.

I don’t know why — that river has never flooded that badly before, at least in my memory — but we had flood insurance. So we’re covered for the losses there, and we’ve told our shippers we’re accepting liability for the damaged loads. That’s not my question.

When Irene hit, we still had one rig on the road carrying, unfortunately, a majorly expensive load. We were trying to get it delivered before the storm. But because of the storm, the driver ran out of hours-of-service time and had to layover. Then a bridge just down the road got washed out while he was sleeping, and the parking lot where he’d left the unit got swamped. To make a long story short, the rig was damaged and the load about destroyed.

The insurance company, of course, won’t cover this one, because it wasn’t on our property. We’re thinking of declining the shipper’s claim on the basis that it was an act of God, but I wanted to get your take on it.

A: Oops. I hate to add insult to your injury, but I don’t much like your proposed defense.

The storm was, unquestionably, an act of God, as was the resulting flooding. You’re good that far. The trouble is, the same can’t be said of where your unit and its load were at the time.

Never mind what your dispatcher was thinking when he or she allowed this rig to stay on the road instead of battening down the hatches; I mean, the Irene forecasts were pretty specific and detailed a day or two ahead of time, as I recall. Thus, the potential peril was known well in advance.

Even so, the unit was in transit in known dreadful weather. And the driver’s hours situation also was (or should have been) known ahead of time, so that’s no excuse. The layover also might have been better timed so the truck was parked at a higher elevation, wouldn’t you agree?

Now, the act of God exemption applies only if the whole mess “could not be prevented by human care, skill and foresight;” Michaels v. N.Y.C.R. Co., 30 N.Y. 564. See also C.&E.I.R. Co. v. Collins Produce, 235 F. 857, aff’d 249 U.S. 186 (1919), and Lehigh Valley R. Co. v. Allied Machinery Co., 271 F. 900 (U.S.C.A.2, 1921). Put the emphasis in this case heavily on the last word of the quotation: “foresight.”

I agree, they’re old cases; most you’ll find in this area are, because the law’s been pretty settled on this point for a long while. But the point is that you had the opportunity to take steps so there was no possibility of this problem ever coming up, right?

And you didn’t, also right?

As I’ve said, don’t bother making excuses. The driver really needed to get back home, the receiver was urgent about getting the load delivered on time, the dispatcher was dead-out sure delivery could be made before the storm hit, blah, blah, blah. Nobody cares; and in court, nobody’s listening.

But “an act of God absolves a carrier from liability only if there is no contributing human negligence;” West Bros. v. Resource Management Service, 214 So.2d 431, citing Levatino Co. v. American President Lines, 337 F.2d 729, and McCurdy v. U.P.R.R., 413 P.2d 617. And, although you may not regard it as negligence to leave a truck out on the road (as well as parking it on lowlands at the peak of forecast flooding) during this kind of “storm of the century,” I’m not sure many courts will agree.

Please don’t regard this answer as definitive. Even though you and I may view the failure as a distinct lapse in judicial judgment, no one has yet appointed me supreme arbiter of such matters. I could be wrong, and you might conceivably prevail in court.

I don’t, however, like your chances. Based on the cases I’ve cited and many others, I think most courts will share my view that this was a time when Johnny should have come marching home.

Consultant, author and educator Colin Barrett is president of Barrett Transportation Consultants. Send your questions to him at 5201 Whippoorwill Lane, Johns Island, S.C. 29455; phone, 843-559-1277; e-mail, BarrettTrn@aol.com. Contact him to order the most recent 351-page compiled edition of past Q&A columns, published in 2010.

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