GA Code § 44-12-45 (2021)
2021 Georgia Code|Title 44 - Property|Chapter 12 - Rights in Personalty|Article 3 - Bailments|Part 1 - In General|§ 44-12-45. 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.   (Civil Code 1895, § 2265; Civil Code 1910, § 2713; Code 1933, § 12-106.)   Cross references.   - Placement of risk of loss where goods are held by bailee for delivery under contract of sale, § 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, cert. dismissed, 238 Ga. 18, 231 S.E.2d 73 (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).   Bailee must prove absence of its contributory negligence.    - Although a bailee need not necessarily 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).    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, cert. denied, 34 Ga. App. 836 (1925).    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).    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).    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).   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).    Cited in Central of Ga. Ry. v. Hall, 124 Ga. 322, 52 S.E. 679, 110 Am. St. R. 170, 4 L.R.A. (n.s.) 898, 4 Ann. Cas. 128 (1905); Southern Ry. v. Montag, 1 Ga. App. 649, 57 S.E. 933 (1907); Atlanta & W.P.R.R. v. Broome, 3 Ga. App. 641, 60 S.E. 355 (1908); Southern Ry. v. Frank & Co., 5 Ga. App. 574, 63 S.E. 656 (1909); Payne v. West Point Whsle. Grocery Co., 151 Ga. 46, 105 S.E. 608 (1921); Bugg v. Perry & Faircloth, 42 Ga. App. 523, 156 S.E. 708 (1931); Richter v. Atlantic Co., 65 Ga. App. 605, 16 S.E.2d 259 (1941); Stovall Tire & Marine, Inc. v. Fowler, 135 Ga. App. 26, 217 S.E.2d 367 (1975).   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.