Here at Western Growers Trade Practices, we encourage shippers to embrace a culture of best practices by putting in place every day procedures and protocols. As part of that mantra, we preach to document, document, and document. As a shipper, we know you strive every day to fulfill your customers’ expectations, on every sales transaction. Because occasional disputes at destination can arise on a perishable sales transaction, most of those contested matters have at the center of the issue, a question related to pulp temperatures at origin, in-transit temperatures, or at destination.

Every decision ruled on by either PACA, DRC, Blue Book or other private mediation specialists, always refer to the documentation of how the produce was ordered and loaded on the refrigerated trailer at origin. The indisputable best way to validate the produce was properly pre-cooled to the recommended specifications is to have a Pre-load Check List that documents pulp temperature and allows for the trucker and your cooler personnel to initial the documented pulp temperature at time of loading. Also, your bill of lading should have a prominent location for the driver to initial the temperatures.  

In a Trade Practices’ 2016 blog, we focused on an actual arbitration decision covering the importance of origin pulp and in-transit temperatures. Please consider reading so that you follow the logic of how disputes are looked at, how documentation is important, and how this might inform you on functional areas of improvement within your own company, to embrace procedures and protocols to make you a better shipper.

Highlights of the arbitrator in his conclusion were:

1. That the shipper recorded the pulp temperature of the product at shipping point and it was signed and acknowledged by the trucker at 35°F, which documented that the product was properly precooled at shipping point.
2. According to the USDA’s Handbook #669, Protecting Perishable Foods During Transport by Truck, broccoli has the highest respiration rate of any fruit or vegetable commonly traded in North America, which is the primary reason why traditionally broccoli is packed in ice when shipping long distances. In this case the broccoli florets were iceless.
3. The pulp temperatures of the broccoli florets and brussel sprouts at contract destination were well-above the recommended storage temperatures for these commodities, and well-above the retailer’s product temperature specification of 32-43°F. The portable recorder reflected elevated transit temperatures (mid-40s) and the TRU download indicating temperatures of 36-38°F. The arbitrator ruled in response to the warm temperature readings reported by the portable recorder, CARRIER does not argue that this recorder malfunctioned, but rather asserts that the temperature logging functionality of the reefer unit is more accurate than the temperature recording of the portable recorder; and therefore suggests we should refer predominately (or exclusively) to the temperature readings recorded by the reefer unit. But, of course, the industry has relied on basic portable recorders (more basic than what was used here) affixed to the product packaging for decades because they tend to be both accurate and reliable.

The Blue Book ruled in its Decision & Award in part: “given the warm transit temperatures suggested by the portable recorder, and the respiration characteristic of broccoli florets, we do not believe the warm receiving temperatures noted by the retailer are sufficient to overcome the presumption created by the driver’s signature on the pick ticket and bill of lading, which suggests the product was properly cooled at shipping point.

For these reasons, we find that the preponderance of the evidence suggest that the carrier failed to properly maintain air temperatures in transit causing the warm pulp temperatures complained of at destination, and leading to the rejection of the broccoli that is subject to this claim.”

What should you do?

1. Please consider a Pre-load Check List that, among other things, also includes pulp temperatures for the driver to initial. By taking these measures, it further documents your best practices and indicates to your buyer and carriers alike, that your company focuses on details to make sure product is always placed in the trailer with the correct recommended temperatures.
2. Review your Bill of Lading and if you have not already done so, I encourage you to add pulp temperatures and a check box for the driver to sign off on those temperatures.

Want to ensure your current sales documents (bill of lading, passing, invoice, etc.) are reviewed for verbiage accuracy and are PACA-trust protected? For this or any other questions, please feel free to contact Western Growers Trade Practices Department’s Bryan Nickerson at [email protected], 949-885-2392, or Matt McInerney at [email protected], or 949-885-2263.

Rejections at destination are inevitable, and the issues surrounding them are never pleasant. So you need to be prepared to take the emotion out of the situation, have your product moved in a timely manner and have it sold for the account of whom it may concern to maximize the return and protect your rights for filing a future claim with complete documentation.

On a rather routine basis, some shippers incorrectly assume taking control of the rejected load for the purpose of moving the product means they have given up their claim rights, against either the original customer or the transportation company. The most important things to remember on a rejected load are to move quickly, minimize any losses and document. By promptly placing the load with a receiver, you can mitigate damages by salvaging the rejected load while all affected parties determine responsibility at a later date.

Keep Everyone Involved in the Loop

Remember, you must notify all parties of your actions. It is imperative that all parties are kept fully informed during the process, so as to eliminate confusion regarding the disposition of the shipment.

If the customer rejects a load without the benefit of the USDA inspection, place your customer on notice that:

• you are not accepting the rejection,
• you are moving the load to be sold for the account of whom it may concern and
• if the load meets contract specifications you will be looking to your customer for any and all losses incurred from the original FOB or delivered contract.

What to Do Next?

Unless you are working with a trusted carrier with whom you have extensive experience, I strongly recommend that rather than rejecting the shipment to the carrier, you coordinate placement. As the shipper, you probably have better contacts with receivers. Further, instruct the receiver to return any proceeds, along with proper documentation which should include an account of sales, directly to you, in order to determine and document your actual loss.

In this situation, be sure the carrier is fully informed of your actions once the rejected load has been placed with the receiver. With the carrier fully informed, taking such action does not remove responsibility from either the carrier or the original customer.

Document and Communicate

I cannot over emphasize the importance of documenting your actions as they occur by emailing both the carrier and customer regarding your actions and that the load is being sold for the account of whom it may concern.

Also, get the shipment inspected in a timely manner to document any damage and secure all available documentation, including a temperature recording tape and/or a TRU download from the transportation refrigeration unit.

All this information will be vital in determining liability and adjudicating your claim whether it’s against the initial buyer/receiver or the carrier. Even if you don’t want to pursue a claim against your customer, when carrier liability is in question following these steps ensures you have the proper documentation supporting your potential transportation claim.

So what should you do when you are presented with a rejection?

• immediately address the situation
• act professionally by following the facts
• minimize the loss by moving the load
• place all parties on notice
• make sure you receive the net proceeds with an accounting and
• prepare a timely claim with all the documentation to finalize it.

Have any questions, comments or concerns that you would like guidance on? Please feel free to contact Western Growers Trade Practices Department’s Bryan Nickerson at [email protected], 949-885-2392, or Matt McInerney at [email protected] 949-885-2263.