In any event, we do not believe the temperature readings presented here are sufficient to establish that the carrier failed to properly maintain transit temperatures in breach of the contract of carriage. What’s more, given the very high level of condition defects reported at destination, it appears to us that these berries would not have made “good arrival” even under ideal transportation conditions. The fact that the raspberries (even more highly perishable than strawberries) appear to have been accepted without complaint while the strawberries were affected with 36% total defects and 18% decay supports this conclusion.
Lastly, we note that although pulp temperatures reported on the USDA inspection were warm at 41°F, because this product was treated with Tectrol and wrapped in pallet bags (trapping heat from the product and shielding the product from direct exposure to the air circulating through the trailer), we would expect the pulp temperature readings to be a few degrees warmer than air temperatures in the trailer during the trip.
Accordingly, in our view, the pulp temperatures reported on the USDA inspection are not sufficient to override the air temperature readings from the three different recording devices placed on board with this shipment, all of which are specifically designed to record air temperatures and resolve disputes of this nature. Moreover, we note that no shipping point pulp temperature reading appears on the bill of lading.
Conclusion
In summary, given the very high level of condition defects reported at destination, and the temperature readings suggesting transit temperatures were properly maintained, it appears to us that these strawberries were not shipped in suitable shipping condition (i.e., failed to make good arrival in breach of the sales agreement).
And while the warranty of suitable shipping condition may be excluded from an f.o.b. sales agreement with words (preferably written, of course) such as “the warranty of suitable shipping shall not apply” or terms such as “f.o.b. acceptance final”—here we see no indication that the warranty of suitable shipping condition was excluded by the shipper in this instance.
