No two carrier claims are identical, but there are recurring themes.
For example, when presented with a warm temperature report from a portable recorder, carriers find themselves in an unfavorable position.
In these situations, we often hear carriers say, essentially, “Yes, but the reefer download looks perfect; the product must have been loaded warm. And, by the way, the driver wasn’t even allowed on the dock to pulp the product.”
In this article we’ll discuss Blue Book’s perspective on these issues, including some of the practical difficulties faced by carriers.
Specifically, we’ll discuss: (1) apparent discrepancies between portable recorders and reefer downloads; (2) allegations of warm product at shipping point; and (3) the ramifications of signing a bill of lading “clean” despite restricted access to the shipper’s dock.
Bad Portable vs. Good Download
First, in the absence of a clear malfunction, such as when a tape jams, we are usually reluctant to conclude that one of the temperature sensors malfunctioned.
While it is certainly possible, temperature reports from portable and reefer units are typically the best available evidence of what the air temperatures were in the particular location of the trailer where the readings were taken.
While portable temperature recorders are placed on the outside of the shipping cartons, usually in the rear of the trailer, the temperature sensors in the reefer unit reside fifty-some feet way in close proximity to the reefer unit’s refrigeration coils.
When it is remembered that the readings from portable recorders and reefer units are taken from very different locations within the trailer, the conversation typically moves beyond questioning the accuracy of the recorders.
In fact, it’s easy to imagine a scenario where the cool air in the trailer “short circuits” due to a torn, or detached air delivery chute. In this scenario everything is going to look good if you’re only considering temperature readings from the nose of the trailer—that is, from the reefer download—but obviously a portable recorder in the tail is likely to tell a different story.
More commonly, we believe poor seals around the rear doors and/or poor insultation in the trailer as a whole account for much of the difference seen when portable recorders and reefer downloads show different readings, especially when outside temperatures are warm.
Regardless of the cause, however, because carriers are expected to protect the product throughout the length of the trailer, section (6.2) of our Transportation Guidelines provides that, “air temperature readings from a single recorder may show a breach of the contract of carriage even if air temperature readings from other locations in the trailer do not.”
And while this may seem to be asking a lot of trucks, this same section acknowledges that some temperature variance from the instructed temperature is expected (see Blue Book’s 2021 Transportation Guidelines, setting forth a default ‘rule of thumb’ for assessing temperature variances for shipments of fresh produce).
Warm Product Alleged at Shipping Point
When carriers respond to claims by alleging product must have been loaded warm, as a starting point, we always want to clarify that we are not looking for them to reduce pulp temperatures. We are looking to carriers to maintain the air temperatures in the trailer, not reduce pulps.
So, if the carrier can show it maintained air temperatures throughout the trailer as instructed, and yet the product arrives warm at destination, there would likely be no grounds for a carrier claim.
Per our guidelines, shippers, not carriers, are responsible for precooling their product as necessary to assure the buyer’s specifications are met provided the carrier properly maintains air temperatures in transit.
But of course, the delineation between pulp temperatures and air temperatures is not always so clear-cut. Carriers are quick to point out that warm product at shipping point makes it more difficult to properly cool the air in the trailer.
So, instead of a two or three degree difference between the reefer’s supply and return air temperatures, we might expect to see a four or five degree difference, as the unit works harder to keep air temperatures within the desired range.
Ironically, the risk presented by warm product at shipping point tends to be freezing injury to the top layers of the rear pallets, as the reefer unit overcompensates and supply air temperatures dip to dangerously cold levels for an extended period.
But we usually expect to see this problem (reefer overcompensating) diminish during the first day of the trip as field heat dissipates and respiration rates decline.
So, when warm temperature readings are shown by a portable temperature recorder, and especially when these readings are seen throughout the duration of the trip, we are likely to view the temperature report as inconsistent with the suggestion that warm product at shipping point caused the air temperatures within the trailer to run warm.
What’s more, even if warm product at shipping point were to excuse a carrier from temperature compliance, how is the carrier going to support its allegation that the product was loaded warm?
Unless the carrier verified pulp temperatures at shipping point, the carrier has no direct or firsthand knowledge of what the temperature of the product was, and can only speculate that the warm trailer must have been caused by warm product.
Shippers, however, at minimum, are usually in a position to provide statements or affidavits from operations personnel with firsthand knowledge of the precooling procedures applied to the shipment in question.
Something along the lines of “I, John Smith, have been Operations Manager at XYZ Farms for 12 years. As a part of our quality assurance and food safety controls, all of our fresh product is precooled to 34 degrees….”
Additionally, shippers can normally produce some type of load sheet or other documentation indicating that the product in question was properly precooled. And while of course none of this is ironclad evidence, it tends to be much stronger than a carrier’s suggestion that the product must have been warm because its trailer ran warm.
Restricted Access to Shipping Docks
Additionally, clean bills of lading tend to compound matters for carriers presented with warm air temperature readings.
Even in situations when the driver is not permitted on the shipper’s dock (a particular problem now due to Covid), a “clean” bill of lading—no “shipper’s load and count” language or other exception noted—not only suggests the product was received in good order, but it also (in essence) puts the burden of proving any damage noted on the delivery receipt at destination was caused by the shipper and that the carrier was free from negligence.
This liability scheme has roots in the common law of common carriage which places the burden of proof on carriers rather than shippers (whether fairly or not) unless the parties contract otherwise.
In other words, a “clean” bill of lading coupled with a “foul” delivery receipt puts carriers in the difficult position of having to prove not only that the shipper performed improperly (e.g., loaded the product warm), but also that the carrier performed properly despite the presence of a report from a portable recorder showing warm air temperatures in the trailer.
This is a known risk that carriers face unless special contract terms are agreed upon. Now if the carrier signs the bill of lading, “shipper’s load and count,” with conspicuous language, then the situation improves somewhat for carriers.
In this scenario the burden would be on the shipper (the party that hired the carrier) to prove the carrier’s negligence, which depending on the specifics of the claim (e.g., perhaps the temperature reports are inconclusive) may be difficult to prove.
Again, this has roots in the common law of common carriage. We recognize that most shippers probably won’t release a truck with this language if the driver just tries to slip it in there. Instead, it would probably need to be arranged ahead of time and factored into the price of the freight—and even then, many shippers may not go for it.
Ultimately, all this tends to leave carriers in a difficult spot when presented with a temperature report indicating air temperatures were not maintained in the trailer.
If the carrier believes its reefer unit and/or the insulation of its trailer will not be able to manage heat from warm product loaded at shipping point, then, practically speaking, we believe carriers need to insist on the right to verify pulp temperatures prior to booking the shipment.