Courts have clearly established that a shipper cannot prevail in a freight claim against a carrier if an “Act of God” caused the freight loss or damage. The Act of God defense is an original, and one of the most battle-scarred, defenses in any Carmack Amendment claim for freight loss and/or damage. It was intended to be asserted in shipment schematics involving severe, natural phenomena such as earthquakes, tsunamis, hurricanes, avalanches, volcanic eruptions, and the like. As predictive meteorological, seismic, and volcanological technology has exponentially improved, however, these natural, and sometimes devastating, events have become easier and easier to predict—and to plan to avoid—for motor and rail carriers. Consequently, as Carmack/Act of God jurisprudence has evolved, the overall defense is less and less likely to be adopted and endorsed by the courts. Nonetheless, one last remaining vestige of the Act of God defense to a Carmack Amendment complaint seems to live on, even in this era of high-tech meteorological and seismic predictive analysis. That category of the Act of God defense is the “high winds defense.” Recent case authority, and practical, empirical data and policymaking, leads to the conclusion that this defense can still be asserted successfully by motor and rail carriers in appropriately turbulent meteorological circumstances.
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