(7.2) ….Carriers are expected to maintain air temperatures throughout the trailer. Accordingly, air temperature readings from a single recorder may show a breach of the contract of carriage even if air temperature readings from other locations in the trailer do not.
With respect to the carrier’s reference to the alleged “inherit vice of the product” he (or she) is referring to a strict liability standard which arguably may apply under the common law of common carriage (even though the commodity is exempt from federal economic regulation and may be considered contract carriage rather than common carriage). A strictly liability standard, however, if applied, would only further weaken the carrier’s position because it would require the carrier to prove it was free from negligence, which, in our view, it cannot, given the readings from the portable devices placed throughout the trailer.
Your questions? Yes, send them in. Legal answers? No, industry knowledgeable answers. If you have questions or would like further information, email tradingassist@bluebookservices.com.
The Problem: Temperature readings from the reefer download and portable recorders conflict.
The Key Point: Carriers are expected to provide temperature control throughout the trailer.
The Solution: Consider all available temperature readings.
QUESTION:
I am an account manager with a major grower-shipper based in California. We recently had a temperature issue with a carrier that hauled our bagged broccoli florets into Michigan. The florets arrived above the customer’s receiving specifications and were refused. We had three portable recorders on the load, and they each reported air temperatures in transit over 40 degrees, significantly above the instructed air temperatures of 34 to 36 degrees.
We think this shows a breach by the carrier, but the carrier is stating that the reefer download shows it “ran perfectly” and that the problems at destination must therefore be a result of the “inherent vice of this particular commodity and is not from carrier negligence.” This is not the first problem we’ve had with this company, and it always holds firm that if the reefer doesn’t run warm it isn’t their issue.
ANSWER:
It is fundamental that carriers are responsible for maintaining air temperatures throughout the trailer, not just in the nose where the reefer unit’s temperature sensor is located. Even the most difficult of carriers should be ready to concede this point. Also, it’s important to keep in mind that the temperature sensors on the reefer unit are located on the reefer-side of the bulkhead wall, and are therefore separated from the produce (a heat source), and reside in close proximity to the unit’s refrigeration coils. Reefer downloads simply do not tell the whole story.
For these reasons (and others, including immediate availability at destination), the industry continues to use portable devices despite the availability of reefer downloads. If the carrier is not prepared to maintain air temperatures throughout the trailer, then it should not sign for the load.
The following are excerpts from the relevant sections of Blue Book’s Transportation Guidelines—
(7.0) If temperature control is required, Carriers are expected to maintain air temperature within the trailer at the instructed temperature. Carriers should consider all factors that may affect air temperatures in transit (e.g., heat from respiration, field heat, ambient air temperatures, air flow within the trailer, the trailer’s insulation, and capacity of the temperature control system) before signing the bill of lading…. If the Carrier cannot warrant that air temperatures in transit will be maintained as instructed throughout the trip, either the load should not be taken, or a specific release from liability should be negotiated.
(7.2) ….Carriers are expected to maintain air temperatures throughout the trailer. Accordingly, air temperature readings from a single recorder may show a breach of the contract of carriage even if air temperature readings from other locations in the trailer do not.
With respect to the carrier’s reference to the alleged “inherit vice of the product” he (or she) is referring to a strict liability standard which arguably may apply under the common law of common carriage (even though the commodity is exempt from federal economic regulation and may be considered contract carriage rather than common carriage). A strictly liability standard, however, if applied, would only further weaken the carrier’s position because it would require the carrier to prove it was free from negligence, which, in our view, it cannot, given the readings from the portable devices placed throughout the trailer.
Your questions? Yes, send them in. Legal answers? No, industry knowledgeable answers. If you have questions or would like further information, email tradingassist@bluebookservices.com.
Doug Nelson is vice president of the Special Services department at Blue Book Services. Nelson previously worked as an investigator for the U.S. Department of Agriculture and as an attorney specializing in commercial litigation.
