O.C.G.A. § 44-12-45 (2019)
When act of God or contract exception available as defense
In order for a bailee to avail himself of an act of God or an exception under the contract as a defense, he must establish not only that the act of God or excepted fact ultimately occasioned the loss but that his own negligence did not contribute to the loss.
History
Civil Code 1895, § 2265; Civil Code 1910, § 2713; Code 1933, § 12-106. History of Section. This Code section is derived from the
decision in Richmond & D.R.R. v. White & Co., 88 Ga. 805, 15 S.E. 802 (1892).
Annotations
Cross references. Risk of loss in the absence of breach, § 11-2-509.
JUDICIAL DECISIONS O.C.G.A. § 44-12-45’s inapplicable to disclaimer containing absolution of liability from all perils. White v. Atlanta Parking Serv. Co., 139 Ga. App. 243, 228 S.E.2d 156, 1976 Ga. App. LEXIS 1756, cert. denied, 238 Ga. 18, 231 S.E.2d 73, 1976 Ga. LEXIS 1076 (1976). Diligence required to preserve shipment from loss by fire. - The diligence required of a common carrier in regard to preserving goods in the course of transportation by the carrier from loss by
fire is not limited to the avoidance of setting fire to such goods, but extends also to protecting and preserving them from destruction after a peril from fire has become apparent. Atlanta & W.P.R.R. v. Jacobs’ Pharmacy Co., 135 Ga. 113, 68 S.E. 1039, 1910 Ga. LEXIS 431 (1910). Bailee must prove absence of its contributory negligence. - If a common carrier relies upon the defense that the loss was occasioned by the fault of the shipper or the shipper’s agent, the shipper
must bring self within the defense by negativing contributing fault on the shipper’s own part. Atlanta & W.P.R.R. v. Jacobs’ Pharmacy Co., 135 Ga. 113, 68 S.E. 1039, 1910 Ga. LEXIS 431 (1910). Where a carrier is sued for loss or destruction of goods in transit, resulting from unreasonable delay in delivery, the defense that the delay was caused by an unprecedented flood or some other act of God will not avail where it appears that the delay was attributable not merely to this cause, but largely to the negligence of the carrier. Lamb v. Mitchell & Co., 15 Ga. App. 759, 84 S.E. 213, 1915 Ga. App. LEXIS 57 (1915). The defense of a carrier would be complete, where the damage was the result of some vis major, upon proof being made that its own negligence did not contribute to the loss caused by an occurrence over which it had no control. Southern Ry. v. Standard Growers Exch., 34 Ga. App. 534, 130 S.E. 373, 1925 Ga. App. LEXIS 398 (1925). Although a bailee need not necessarily
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prove that the loss was occasioned by a particular exception, the bailee must establish that personal negligence did not contribute thereto. Haynie v. A & H Camper Sales, Inc., 233 Ga. 654, 212 S.E.2d 825, 1975 Ga. LEXIS 1409 (1975). Where goods are shipped “released,” the burden is upon the carrier to show that the loss was within an exemption and not occasioned by negligence. Georgia S. & F. Ry. v. Johnson, King & Co., 121 Ga. 231, 48 S.E. 807, 1904 Ga. LEXIS 95 (1904). Proof that goods damaged by inherent qualities rebuts carrier’s negligence. - When the goods composing a shipment are of such intrinsic character as to be self-destructive or incapable of safe transportation, the presumption that damage which occurred in the course of the transportation is due to the negligence of the carrier is rebutted by showing that the damage is due to the inherent qualities of the shipment. Capital City Oil Co. v. Central of Ga. Ry., 16 Ga. App. 750, 86 S.E. 57, 1915 Ga. App. LEXIS 217 (1915).
RESEARCH REFERENCES Am. Jur. 2d. 8 Am. Jur. 2d, Bailments, §§ 134, 136, 157. C.J.S. 8 C.J.S., Bailments, § 56. ALR. Law of general average as affected by fact that necessity for sacrifice or expenditure was due to negligent navigation, 25 A.L.R. 154. Liability of bailee where subject of bailment is stolen, 26 A.L.R. 223; 48 A.L.R. 378.
Bailee’s express agreement to return property, or to return it in a specified condition, as enlarging his common-law liability, 124 A.L.R. 186; 150 A.L.R. 269. Presumption and burden of proof where subject of bailment is destroyed or damaged by windstorm or other meteorological phenomena, 43 A.L.R.3d 607. Liability of hotel, motel, or similar establishment for damage to or loss of guest’s automobile left on premises, 52 A.L.R.3d 433.
PART 2 HIRING RESEARCH REFERENCES ALR. Validity of agreement by bailee of instrumentality to purchase his supplies from bailor, 14 A.L.R. 114; 17 A.L.R. 392. Liability of bailee for loss of or injury to
goods kept at a place other than that originally intended, 17 A.L.R. 979. Imputing negligence of bailee to bailor where subject of bailment is damaged by third person, 30 A.L.R. 1248.
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Duty and liability of farm tenant in respect to livestock leased with farm, 32 A.L.R. 857. Right of a factor, commission merchant, or produce broker to sell property to protect advances, 40 A.L.R. 387. Liability of one contracting to make repairs for damages for improper performance of the work, 44 A.L.R. 824. Relationship of bailor and bailee as between owner of goods in bonded warehouse and proprietor of warehouse, 77 A.L.R. 1502. Liability of one furnishing lockers for
hire or to patrons for loss of packages or goods placed therein, 19 A.L.R.2d 331. Liability of warehouseman for injury to stored goods as result of failure to maintain proper temperatures, 92 A.L.R.2d 1298. Bailee’s duty to insure bailed property, 28 A.L.R.3d 513. Construction and effect of motor vehicle leasing contracts, 43 A.L.R.3d 1283. Liability of hotel, motel, or similar establishment for damage to or loss of guest’s automobile left on premises, 52 A.L.R.3d 433.