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April 14, 2020

Secure a Victory in a Potential Temperature Claim With Having All The Proper Documentation

In a non-COVID world on a monthly basis, I conduct sales workshops/seminars for our regular members of Western Growers to discuss and educate on various claim issues that a sales organization would encounter in their day to day experience on the sales desk. One question that is commonly raised pertains to the importance of evidence in a temperature related problem. What takes precedence in a potential abnormal transportation claim? Is it the timely USDA inspection pulp temperatures, the portable temperature recording device, or the TRU (Trailer Refrigeration Unit) download? In my opinion and what is guided to the membership, you need to consider all the available evidence and documents in order to make an informed decision. Ideally, the aforementioned three documents should support each other; however it is not at all uncommon that these three documents will be in conflict. Therefore, it is important to assess what each temperature reading is actually describing. The USDA or CFIA inspection certificate discloses a range of pulp temperatures of the product at the date and time of the federal inspection, and is done by an independent third party. The portable temperature recording unit provides a snapshot of the temperature inside the trailer, at the precise location where the device was placed. The TRU can provide information of various operational aspects that are going on with the refrigeration unit of the trailer transporting your product. Some of the TRU download information points are the temperature set point, start date and time of temperature monitoring, actual trailer air temperature as it returns to the intake refrigeration unit after circulating through the trailer, the actual temperature originating from the refrigeration unit, the ambient or outside temperature, and the operational mode for the TRU. Most critical to review is if the refrigeration unit is running continuous, and not on a start/stop mode. Fresh produce should only be transported under continuous-cycle reefer operational conditions.

All three of these documents are helpful in their own way by providing you information on how your product was handled during transit and after arrival and unloading at destination, and can assist in determining responsibility in a claim situation. While no one of these three documents takes precedent, clearly the USDA or CFIA will be significant evidence in providing arrival pulp temperatures and also provide insight as to what corresponding condition factors that may have been exacerbated by any prolonged elevated temperatures.

Another question I commonly receive is what happens if the buyer tells the shipper he cannot locate the temperature recording device? While the inability of being able to locate the portable temperature recorder is unfortunate, that failure means there is one less document to establish normal transit.  In a previous PACA decision Sharyland, LP v. Lloyd A. Miller, 57 Agric. Dec. 762 can be viewed by clicking here; states in part:

“There are commonly only two parties with the opportunity, or motive, to wrongly “lose” a temperature recorder or tape, namely the receiver and the trucker.  In both cases the only motive would be that the tape disclosed improper transportation.  Therefore if a shipper proves by submitting a bill of lading signed by the trucker (as the shipper in this case did) that a temperature recorder was placed on the truck, it is hard to imagine adequate excuse for a receiver’s failure to produce the tape.  In this case respondent has offered no excuse.  A receiver may, indeed, be entirely innocent, in that the recorder may have been thrown away by the trucker before arrival of the truck.  However, since a trucker would thus dispose of a recorder only if transportation was bad, one is inevitably led to the presumption that transportation temperatures were abnormal.”

Therefore, if your buyer tells you that the temperature recording device is lost, then a conversation must ensue with you examining other evidence that may result in you requesting full payment on this shipment. The USDA or CFIA and any TRU download will then need to be scrutinized.

Also, remember that when determining whether in-transit temperatures were normal, one should take it into consideration:

  1. The portable temperature unit printout
  2. The destination pulp temperatures reported on the USDA, or CFIA inspection
  3. A TRU download from the refrigeration unit

All three of these temperatures are critical in determining whether or not transportation was normal or not, and thus where liability rests.

Lastly, in order to have a valid claim based on abnormal temperature in transit, or at destination, you must also have reportable condition problems that are directly attributable to the abnormal temperatures. It is always advisable to secure a federal inspection for condition only and have available in your defense. As always, should you run into a situation such as this or would you like guidance on any problem files or disputes, please feel free to contact Western Growers Trade Practices Department’s Bryan Nickerson at [email protected] or 949-885-2392.