Federal and state law have long established that a shipper cannot prevail in a freight claim against a carrier if an “Act of God” caused the freight damage, loss, or delay in question. This “Act of God” defense is available to carriers of all modes in both domestic and international transportation. For instance, the U.S. Congress expressly included the “Act of God” defense in the plain text of the Carriage of Goods by Sea Act. See 46 U.S.C. § 1304(2)(d) (“[N]either the carrier nor the ship shall be responsible for loss or damage arising or resulting from … (d) Act of God.”). Likewise, the defense is found in the express language of the Harter Act. See 46 U.S.C. § 192 (“[n]either the vessel, her owner or owners, charterers, agent, or master [shall] be held liable for losses arising from … acts of God.”). With respect to surface transportation, the United States Supreme Court has unequivocally held that the defense may be raised by a surface carrier under the Carmack Amendment, even though the defense does not appear in the plain language of the statute. Missouri Pacific Railroad Company v. Elmore & Stahl, 84 S.Ct. 1142 (1964) (the Carmack Amendment “codifies 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 ….”) citing Chesapeake & O. Ry. Co. v. A. F. Thompson Mfg. Co., 46 S.Ct. 318, 319-20 (1926). Finally, while the text of the Warsaw Convention does not contain any express reference to the “Act of God” defense, the Convention nonetheless essentially provides for the defense by permitting an air carrier to exempt itself from liability upon a demonstration that it took all reasonable steps to avoid the damage.

This article is reprinted from the April 2004, PRACTITIONERS’ PERSPECTIVE column published in the CCH FEDERAL CARRIERS REPORTER.