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Proving Concealed Damages

Rodent infestation.
Produce Pointers

The Problem: Rodent infestation.

The Key Point: When a delivery receipt is signed clean, be prepared to show the damage was concealed.

The Solution: Call for a government inspection to establish when the injury occurred.

We are a truck broker with offices in several U.S. locations. We find ourselves in a dispute stemming from a full load of tomatoes we were hired to move from California to a cooler in the Detroit area for cross docking into the Toronto area. We picked up the tomatoes as scheduled and delivered to Detroit in a sealed trailer. The cooler signed the delivery receipt clean for the tomatoes and we thought everything was good with this shipment. Upon arrival in Canada, however, the receiver refused to unload the product because of rodent infestation in several of the boxes. Pictures suggest that a rodent (or rodents) ate holes in some of the tomatoes and left feces behind.

We asked the receiver to call for a Canadian Food Inspection Agency (CFIA) inspection, but they have refused because they don’t want any of the product unloaded at their facility for fear of spreading the infestation. The tomatoes are sitting at their dock and both the shipper and the receiver seem to be blaming the carrier for the problem. Will you please review and advise?

We do not see responsibility falling on the carrier here. We assume the driver is prepared to attest that the trailer was clean when it arrived at shipping point. This, combined with the fact that the shippers personnel loaded raw food into the trailer, in our view, establishes that the trailer was clean—at minimum, free from rodents—when it was backed into the shipper’s dock. And because the trailer was sealed when it pulled away from the shipping dock, and intact when it arrived in Detroit (delivery receipt signed clean), we think the question here is, did the rodent(s) enter at shipping point or after the product was received in Detroit?

The paper trail favors the shipper because the distributor signed for good tomatoes, suggesting the infestation occurred after arrival at the distributor’s cooler. The distributor, however, is probably going to be quick to argue that the damage was concealed, and therefore the clean delivery receipt does not prove the tomatoes were good upon arrival in Detroit.

Although it is easy to see how the distributor (personnel at the third-party cooler) could have unloaded the tomatoes without noticing the infestation, establishing that the damage would have been concealed upon arrival is not the same as establishing that the product was, in fact, damaged upon arrival. How then can the distributor show the tomatoes were infested prior to arrival in Detroit?

The photos we have reviewed appear to show that most of the feeding injury is fresh, as if the injury could have occurred within hours of the inspection while in storage in Detroit or during the relatively short trip to Toronto. But one of the pictures arguably suggests an older injury from perhaps several days earlier. In our view, however, this picture alone does not conclusively show the infestation occurred prior to arrival in Detroit.

Accordingly, we would encourage the distributor to call for a CFIA inspection and to specifically ask the inspector to report on the freshness of the injury. If the inspector were to document that it appears some of the injury is too advanced to have occurred in the last one or two days, this would seem to be conclusive support for the distributor’s position.

Lastly, while we don’t want to minimize the receiver’s concern about the risk of infesting its warehouse, surely there is a location, even if outdoors and off-site, where these tomatoes can be safely inspected. If not, it may be that the distributor finds itself unable to show the product it signed for in Detroit was already infested.

What’s more, the shipper may well use the distributor’s failure to get a CFIA inspection to its advantage by arguing that if some of the injury was old, the distributor would have called for an inspection to settle the issue. Generally speaking, arbitrators are reluctant to see a party that failed to secure relevant and available evidence (e.g., neglecting to call for an inspection needed to settle a pivotal question of fact) benefit from this failure.

Your questions? Yes, send them in. Legal answers? No, industry knowledgeable answers. If you have questions or would like further information, email


Doug Nelson is vice president of the Special Services department at Blue Book Services. Nelson previously worked as an investigator for the U.S. Department of Agriculture and as an attorney specializing in commercial litigation.