Encl. (1) to COMDTINST 4610.6
DETERMINATION OF LIABILITY
1.
General.
a.
Common Law Rule. At common law, a common carrier is absolutely liable for the loss
of, or damage to, property received by it for transportation. A carrier can only justify or
excuse a default where a loss or injury occurs by an:
(1) Act of God.
(2) Act of the public enemy (war).
(3) Act or mandate of a public authority.
(4) Act or fault of the shipper.
(5) Defect in or inherent vice of property, or where the loss or injury results from some
cause against which it has lawfully contracted.
These exceptions are explained in detail in Section B of this enclosure.
b.
Rule for Strict Accountability. This rule, or as it is sometimes referred to "strict
liability," to which the carrier is held at common law is not founded upon contract, but is
imposed by law to protect the shipper. It is founded in the policy of the law arising out of
the hardship which would result to the shipper from the adoption of any other rule. This
common law rule is based upon the public character of the carrier's duties; the inequality
of the carrier and the shipper; the absolute possession and control of the property by the
carrier during shipment; the entire separation of the shipper from his or her property
during transport; the shipper's lack of opportunity to protect it by any efforts of his or her
own; the opportunity of the carrier for embezzlement and fraudulent collusion with others;
and, the ordinarily exclusive possession by the carrier of the means of evidence, and the
difficult, if not impossible, task of proving fraud or negligence by which the goods were
lost or damaged.
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