That said, for mediation purposes at least, we have at times recognized damages for lateness when the market was holding steady, so long as a range of prices was reported. We’ve approached this by taking the difference between the average and low-end prices reported for product in “good condition” during the relevant timeframe, based on the theory that the older product would be likely to sell for less than the newest (freshest) product available at the same market.
For example, here the pack in question was selling for between $14.00 and $16.00 per carton at shipping point on March 13, 14, and 15. By taking the difference between the average reported selling price of $15.00 and the low-end price of $14.00, we arrive at estimated losses (really ‘theoretical losses’) of $1.00 per carton.
This method usually results in losses significantly less than the buyer is looking for; yet, given the difficulty of quantifying damage to the product after a one- or even two-day delay, greater damages cannot usually be supported.
Conclusion
Generally speaking, when sellers ship product that just barely makes good arrival, buyers are responsible for paying the full invoice price for product with significant defects. Converse-ly, when sellers breach the warranty of suitable shipping condition, even by just a few percentage points, buyers very often claim losses based on the difference between prevailing market prices for virtually defect-free product and product with between 15 to 20 percent defects. ‘Good arrival’ therefore may perhaps be thought of as an all-or-nothing game that hinges on just a few percentage points higher or lower on a USDA or CFIA inspection certificate.
And while this game arguably represents a sort of rough justice between produce vendors, it simply does not apply to carrier claims. A claim against
a carrier for a delay that causes product to be delivered with 1 or 2 percent more defects than it should have must be based on 1 or 2 percent additional defects, and not the total 15 to 20 percent defects reported on the inspection certificate.
In the situation described above, if not for the carrier’s breach (the shifting and resulting delay), it appears the apples in question would likely have been affected with approximately 14 percent defects. Consequently, the wholesaler owes the seller the full price for these apples, despite the significant defects. In this instance, the buyer finds itself on the losing side of the all- or-nothing game vis-à-vis the seller, left with only a minor claim against the late-arriving carrier.
