Will Rogers once quipped that “I don’t make jokes; I just watch the Government and report the facts.” While most Americans can probably identify with that observation to one extent or another, the government unquestionably plays a very serious role in controlling the transportation of goods both domestically and internationally — whether by facilitating or liming that movement. Indeed, in today’s global marketplace, the governments of other countries have equally powerful control over the transportation of goods coming to or from the United States. A sovereign government’s extraordinary control over the transportation of goods means that a government’s conduct can, at times, cause actual loss or damage to goods or, as is more often the case, delay in the delivery of goods. Consequently, under some circumstances, a carrier can successfully assert that the interfering act of a government is valid defense to a freight claim.

This brand of defense is formally codified in a number of statutes and treaties and is also recognized by common law. For instance, the Carriage of Goods by Sea Act (“COGSA”) contains a number of relevant provisions. 46 U.S.C. § 1304(2)(g) recognizes that neither an ocean carrier nor a ship shall be liable for loss or damage arising from “arrest or restraint of princes, rulers, or people, or seizure under legal process.” COGSA also recognizes that an “act of war” as a defense 46 U.S.C. § 1304(2)(e). Courts have also uniformly held that an “act of a public authority” is a valid defense to a freight claim under the Carmack Amendment. See, e.g., Case Western Reserve University v. Yellow Freight System, Inc. (Cuyahoga Co. 1993), 85 Ohio App. 3d 6. Similarly, Article 18 of Montreal Protocol No. 4 to the Warsaw Convention expressly identifies acts of war or acts of “public authority carried out in connection with the entry, exit, or transit of the cargo” as defenses to freight claims involving international air shipments.

This article is reprinted from the April 2005, PRACTITIONERS’ PERSPECTIVE column published in the CCH FEDERAL CARRIERS REPORTER.