News & Publications
Gone with the Wind
“[…] In North Carolina, Helene produced unusually heavy winds — up to 140 mph — on land, the strongest observed in coastal North Carolina since the start of modern meteorological recordkeeping in the 19th century.” Hurricane Helene coverage, NPR, Sept. 28, 2024. What began as a disturbance in the Caribbean, quickly developed into hurricane Helene, the most powerful on record to hit Florida's Big Bend, and after making landfall, it moved north into Georgia, the Carolinas, Tennessee, and Virginia.
Other than the obvious concerns about the loss of life and destruction of habitat and property; from a transportation perspective, one cannot avoid thinking about freight claims and one of the oldest affirmative defenses in the book, “Act of God”.
While extraordinarily severe weather has often given rise to a valid “Act of God” defense, it is not as common and successful of a defense as one may think. For starters, an “Act of God” is an unusual occurrence; but in addition, as predictive meteorological technology continues making strides, these natural events have become easier to foresee, thus challenging one of the main factors on an Act of God defense: the reasonable predictability of the specific natural occurrence. An interesting caveat to this seems to be wind. Hurricane Camile (1969), Hurricane Katrina (2005), Hurricane Maria (2017), Hurricane Charley (2004), Hurricane Ian (2022), Hurricane Helene (2024)… all carried wind speeds well over predictions.
The Carmack Amendment applies to motor carriers involved in interstate transport. Generally speaking, Carmack deems the carrier strictly liable for damage to the freight. However, among other things, high winds and windstorms are a recognized factor within the Act of God exception to carriers’ liability. The general standard for “high winds defense” is whether the winds were expected and if human negligence contributed to the damage.
When building an “Act of God” defense based on wind, the challenge is to prove that even though there was knowledge about a storm, the winds were an “Act of God” because they were stronger than expected, thus “uncontrollable and unforeseeable”. Needless to say, the carriers’ assertion alone would not make it a valid defense; input from expert testimony, reports, governmental agencies, and other factors, would need to be considered as well. However, in the proper situation, this defense could be asserted and could succeed in court.
Contributor: Amparo Elizondo
About Allyn International
Allyn International provides high quality, customer centric services and solutions for the global marketplace. Allyn's core products include transportation management, logistics sourcing, freight forwarding, supply chain consulting, tax management and global trade compliance. Allyn clients range from small local businesses to Fortune 500 firms. Allyn conducts business in more than 20 languages and has extensive experience in both developed and emerging markets. Highly trained experts are positioned throughout North and South America, Europe and Asia. Allyn’s regional headquarters are strategically located in Fort Myers, Florida, U.S.A., Shanghai, P.R. China, Prague, Czech Republic, and Dubai, U.A.E. For more information, visit www.allynintl.com.
Sources:
“Death toll from Hurricane Helene mounts as aftermath assessment begins”, NPR, Sept. 28, 2024. https://www.npr.org/2024/09/28/nx-s1-5132035/death-toll-from-hurricane-helene-mounts-as-aftermath-assessment-begins#:~:text=In%20North%20Carolina%2C%20Helene%20produced,that%20was%20yet%20to%20come.
“Hurricane Helene leaves 'biblical devastation' in North Carolina”, Rachel Looker BBC News, Sept. 29, 2024. https://www.bbc.com/news/articles/cly5d9y07e3o
Hurricane Camille, Wikipedia. https://en.wikipedia.org/wiki/Hurricane_Camille#:~:text=The%20wind%20speed%20of%20Camille,2014%20concluded%20that%20Camille%20had
“The Perfect Storm: The Parameters of a Successful “Act of God” Defense in Freight Claims”, From the Benesch TRANSPORTATION ARCHIVES, JDSupra, Sep. 16, 2014. https://www.jdsupra.com/legalnews/from-the-transportation-archives-the-pe-71239/
“An Act of God Carve-Out Survives in Cargo Litigation, in The High Tech Era”, JDSupra, Benesch Attorneys at Law, Mar. 25, 2024. https://www.jdsupra.com/legalnews/an-act-of-god-carve-out-survives-in-6543376/