I have about $8,000 worth of paper products that sustained water damage during Hurricane Harvey. Is this claim recoverable? Won’t my carrier just deny it using the Act of God defense since it was damaged during the hurricane?
The Act of God defense doesn’t automatically absolve a carrier of all liability. This defense can only be used when there was nothing that the carrier could have reasonably done to prevent the damage.
Of course, it all depends on the circumstances of the claim. For example, let’s say your carrier decided to send your shipment into the path of a known hurricane. Instead, they should have chosen an alternate route or held it at the pickup terminal until the hurricane had passed. In this case, the Act of God defense is easy to disprove, because the carrier’s actions were negligent. However, suppose your product was already sitting in a Houston terminal. At some point the carrier would know that the terminal would flood – would that timeframe give the carrier ample time to move the products to a dryer city, or were they prevented by gridlock? This is where the Act of God defense is harder to refute.
However, even if your carrier has a valid Act of God defense, they’re still responsible for mitigating the loss once they become aware of the Act of God. Take the example of the flooded Houston terminal. Maybe heavy traffic prevented the carrier from moving your product to a different terminal. But in the terminal itself, was there free space on higher racking? Did your carrier move the products to all available top racks, or did they just leave everything on the floor? If they failed to take reasonable actions to mitigate the loss, your carrier would still be partially liable, and they would need to pay at least part of the claim.
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Disclaimer: The above information is not legal advice; neither Dick Lucarelli nor TranSolutions Inc accept any liability for its content.