A scenario that continuously comes into play when I’m dealing with a disputed load is when product arrives at the contract destination with condition defects and the temperature recording device cannot be located. In virtually all cases the trucker has signed for the temperature recording device, which is normally printed on the Bill of Lading, yet for some unknown reason the receiver and/or carrier claim temperature recording device cannot be located.
Only two people can benefit from not being able to locate the temperature recording device: the trucker who hauled the produce or in an FOB sale and the buyer, who assumes all the in-transit risks. 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 temperature recorders placed on a trailer at shipping point to record in-transit temperatures can help determine how temperatures were maintained during transit. In this case it was found that since the temperature recorder cannot be located one would have to presume that transportation was abnormal. Also, remember that when determining whether in-transit temperatures were normal, one should take it into consideration:
- the temperature tape
- the destination pulp temperatures reported on the USDA inspection
- a download of the refrigeration unit of the trailer hauling the product.
All three of these temperatures are critical in determining whether or not transportation was normal or not, and thus where liability rests.
As always should you run into a situation like this please feel free to contact me to discuss on what appropriate action should be taken, (949) 885-2269).