Resting easy on the carrier’s dime
Absolutes often sound good.
For example, a company that states it has “a zero-tolerance policy for food safety risk” may sound like it has strong leadership and values, and perhaps it does.
But will its commitment to its stated policy hold up when tested by real-life scenarios?
Recently we were presented with a carrier claim that called a buyer’s zero-tolerance policy into question.
The core facts were straight forward enough—the carrier was hired to haul a load of mixed greens from Southern California to the East Coast. Upon arrival, the receiver noted that one of the two seals applied to the trailer doors at shipping point was broken.
The carrier explained it believed the thin metal wire of the seal (the seals applied here were made of hard plastic and wire) snapped as the trailer doors vibrated and shook over a rough patch of roadway.
The carrier also maintained the trailer doors were never opened during this trip. This appeared to be consistent with the temperature report from the portable recorder, which did not register any reading above 39°F until the doors were opened by the receiver at destination.
This notwithstanding—and although there was no indication the shrink wrapping of the pallets, the shipping cartons, or the consumer packaging had been tampered with—the receiver rejected the shipment and required that the entire load be disposed of at an area farm.
Talking It Through
Of course, it is possible to imagine that some bad actor (i) broke the seal, and (ii) entered the trailer in a cooled environment that would not register on the portable temperature recorder, and then (iii) corrupted the product while using care to hide evidence of tampering.
But this scenario sounds far-fetched, and the receiver does not suggest this actually occurred. Rather, the receiver simply states it has a zero tolerance for risk of contamination.
We would point out, however, that intact seals are not absolute proof of the absence of contamination. Thieves have been known to steal cargo from trailers by removing and then reattaching the trailer doors while leaving the seals intact.
Taken literally, perhaps no shipment of produce is 100-percent free from the risk of contamination.
We note that the Sanitary Transportation Rule (21 CFR Sec. 1.900 et seq) does not call for the elimination of all theoretical risk:
If a shipper, loader, receiver, or carrier becomes aware of an indication of a possible material failure of temperature control or other conditions that may render the food unsafe during transportation, the food shall not be sold or otherwise distributed, and these persons must take appropriate action including, as necessary, communication with other parties to ensure that the food is not sold or otherwise distributed unless a determination is made by a qualified individual that the temperature deviation or other condition did not render the food unsafe. (21 CFR Sec. 1.908(a)(6))
As we read it, the Sanitary Transportation Rule calls for produce vendors and carriers to apply sound judgement and informed common sense to the facts presented in each case.
And while we can appreciate the receiver’s desire to rest easy at night, secure in the knowledge that a stringent policy was enforced, if the receiver is not willing to pay for the product lost as a result of this heightened level of caution, then we think it must balance its desire to eliminate all theorical risk against its duty to act reasonably and help (or at least not hinder) the carrier’s efforts to mitigate losses following the rejection.
Complicating matters somewhat here, we see that the receiver required the driver to sign an “Inbound Transportation Statement” at shipping point.
This document, which the driver apparently signed without objection, conspicuously stated, among other things, that—
All trailer doors must be closed and secured with a Security Seal by the seller or seller’s agent (cooler operator). Seals must be attached in a manner that prevents tampering. Seals that are not intact or secured or do not prevent all doors from opening without breaking them will result in rejection.
Under no circumstances may product be destroyed, resold, or redistributed without written consent from [the receiver].
This document may make this a case where, by agreement, the receiver established the right to reject due to a broken seal regardless of other considerations.
Although this document should have been presented at the time this load was booked, arguably the driver’s signature on this document and failure to object to these terms is meaningful and could be deemed binding on the carrier.
Furthermore, we have generally recognized a receiver’s right to reject for abnormal transportation without a specific agreement to do so (see Section 9.10 of our Transportation Guidelines).
However, the product here was not just rejected. Apparently relying on the last sentence quoted above, the receiver insisted that this product (which was not private label for in-store sales only) could not be resold and needed to be disposed of at an area farm.
Although we can appreciate the receiver’s desire to minimize all risk of being implicated in a food safety incident, there are costs associated with such heightened (perhaps rigid as applied here) caution that cannot, in our view, be properly passed on to the carrier based on the facts presented.
At minimum, we believe the carrier should have been given the opportunity to obtain an independent assessment of the shipment documenting the absence of evidence of tampering—before being told the product must be disposed of without any opportunity to mitigate losses.
We believe produce vendors owe the carriers they hire a careful case-by-case review of the facts before mandating that a shipment be destroyed at the carrier’s expense in the name of food safety.
Absolutes may sound good but striking a balance may be the right thing to do in some cases.