Q&A: Riders on the Storm

Q: We had a truckload of product caught up in Superstorm Sandy that was destined to a customer in coastal New Jersey. By the time the truck got to the area, storm warnings were in force, and our customer had closed down.

For reasons best known to himself, the driver decided to park the unit in the lot of a storage facility nearby while he evacuated himself. We’ve been given various reasons for his doing this — he was low on fuel, he was near the end of his hours-of-service driving time, it was policy to leave the load near the destination, etc. — but regardless of the reason, that’s what he did.

During the storm, the parking lot was pretty much swamped; saltwater seeped copiously into the trailer, and the load was destroyed. The carrier says it will be declining our claim on the basis that the storm was an act of God.

There’s more than $100,000 at stake here. Is the carrier right?

Q: I know Hurricane Sandy did a lot of damage, making our problem seem petty, but I’m still going to ask my question.

We had a number of packages going to various destinations by parcel carrier. A couple of days before the storm hit, we took them to a retail shop where the carrier normally picks up, as per usual. The truck, however, didn’t make it in before the storm hit, and during it, the retailer — in fact, the whole shopping mall where it’s located — was flooded.

Our packages, or course, were soaked, and the contents were destroyed. Do we have any recourse against the retailer or the parcel carrier or, indeed, anyone? Our own insurance company won’t cover the loss, because the packages were out of our facility and out of our control. So unless we can recover, we’re out the money.

I might add that our bill for the parcel carrier included additional insurance on the packages beyond their usual $100 liability. But I’m told by people who seem to know about these things that this is an act of God, for which nobody can be held responsible.

A: God sure does get blamed for lots of bad stuff, and He alone, of course, had jurisdiction over Sandy. But even though He may bear responsibility for the root cause of the damage in both these cases, that doesn’t relieve carriers of their own responsibility.

To my first correspondent, the storm was an act of God, but parking the truck in harm’s way was an act of the carrier’s driver — and for that the carrier must accept liability.

Cargo loss or damage “cannot be considered the act of God ... (if) the act or negligence of man contributes to bring or leave the goods ... under the operation of natural causes that work their injury”; Michaels v. N. Y. C. R. Co., 30 N.Y. 564. There are numerous other cases to the same effect.

The carrier’s employee/agent left the truck there. I don’t care a lot why; that’s immaterial. Because its goods were thereby placed in harm’s way and injured as a result, the carrier is liable for its economic loss.

My second correspondent’s case is a little trickier, but not much. It’s the carrier against which he should file his claim, and the carrier owes that claim, including the added amount from the purchased insurance (although my correspondent is obliged to pay the insurance premium).

A carrier’s liability attaches from the moment goods are left “in the place at which they are accustomed to be deposited, or at a place specifically designed” for carrier pickup; Corpus Juris Secundum, 13 C.J.S. Section 144 (1939 ed.), citing a great many cases. And there are many other more recent ones.

My correspondent took the goods to the retail establishment where the carrier ordinarily picks up. He provided full shipping instructions, including the insurance details. That finishes his obligations, and the goods are now deemed to be in the carrier’s custody, notwithstanding that the carrier hasn’t physically taken possession.

And once again the “act of God” defense falls short on much the same basis as in the first case. The carrier didn’t pick up the packages from the retailer, and in the context of these packages, the retailer was the carrier’s legal agent. That renders the carrier liable for leaving the packages where they’d be exposed to the ravages of the storm and the flooding it brought with it.

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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