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November 8, 2018

The Burden of Proof to establish Normal or Abnormal Transportation

When it comes to in-transit temperatures, it’s not always black and white to definitively establish if the shipment was affected by improper in-transit temperature maintenance.

When the transportation record (temperature recorder/Carrier Download) clearly documents temperature abuse for a sustained period of time, the shipper should have no problem enforcing its FOB contract. However, what happens when evidence does not clearly demonstrate the issue of abnormality of transportation service?

When a buyer makes a rejection to the shipper (regardless of the merits), the burden is on the seller/shipper to prove that transportation was abnormal.  This is important where the rejected goods are shown to have arrived in poor condition, and you, as the seller, wish to show that abnormal transportation voided the warranty of suitable shipping condition in order to show the rejection was actually wrongful, and without merit.

The problem is in what we often times refer to as the gray area, meaning that we have a shipment that arrives failing to make good delivery, however, the portable temperature chart and carrier download do not corroborate each other.

It is often a standard argument by the buyer, and eventually by the carrier, that there is an absence of any abnormality with the transportation service, and in the situation of elevated pulp temperatures and condition defects, it is often represented by the buyer and the carrier (many times without in basis in fact) that the condition reported at contract destination was the direct result of either improperly loading the product, or that the product was loaded warm.  This is where your cooling facility and shipping records come into play and can be vital in dispelling the contention that improper cooling was the cause of the damage.  We cannot emphasize enough the importance of taking the time to properly fill out and maintain shipping records.  A little extra time up front can save $’s in the long run.

You should never tender a shipment to the carrier without doing the following:

  • Make sure that you have recorded the pulp temperatures on the bill of lading and that the  carrier acknowledges (preferably by intiailing) those pulp temperatures at time of loading
  • Use a pre-load  and load check list (click here for an example) and have the carrier acknowledge
  • Allow carrier to observe pulping and loading of product and have them initial on the document
  • Have the carrier acknowledge the placement of the temperature recorder
  • Maintain cooling records should questions arise after-the-fact
  • Always follow proper loading procedures to ensure the best possible air-flow
  • If possible,  many facilities have a video of the loading process

Be that best in class shipper by implementing SOP’s for proper loading which will pay dividends with reduced claims and contract disputes.

While it is never easy to resolve this type of dispute with your customer and/or carrier, without establishing a set of guidelines, and documenting each step of the way, you are far less likely to prevail.

Please contact Western Growers with any questions or call with any real time need for assistance.  Bryan Nickerson (949) 885-2392 [email protected], Ken Gilliland (949) 885-2267 [email protected], or Matt McInerney (949) 885-2263 [email protected].