By David G. Ballard
Idaho Licensed Attorney[1]
Shippers of food are obligated to specify the type of equipment to be used, see Rule 1.908(b)(1) of the Sanitary Transportation of Human and Animal Food Rules, 21 CFR § 1.908(b)(1), which, in pertinent part, provides:
(1) … the shipper must specify to the carrier and, when necessary, the loader, in writing, all necessary sanitary specifications for the carrier’s vehicle and transportation equipment to achieve this purpose, including any specific design specifications and cleaning procedures … . [emphasis added]
Compare and contrast this Rule with 49 USC § 14101 which obligates a motor carrier to “ … provide safe and adequate service, equipment, and facilities” and the common law to provide suitable equipment.
Although the author has not located any cases construing Rule 1.908(b)(1), the following may illustrate its possible application in the context of Section 14101 or the common law.
In John Morrell & Co. v. Frozen Food Express, Inc., 700 F.2d 256 (5th Cir. 1983), which involved the loading of an empty trailer to be picked up by the carrier, which was delayed for five days due to inclement weather, the Court recognized that a carrier has the initial duty to furnish a trailer that is safe, adequate, and suitable for its intended purpose. However, it concluded, based on custom and practice of the industry, that the carrier was not liable for having supplied a trailer with a refrigeration unit that malfunctioned during this period and that imposing a continuing obligation on the carrier would undercut the incentive of shippers to inspect trailers on their lots and which would be contrary to the understanding between the parties as to who was responsible for the cargo.
The case of A. J. Tebbe & Sons Co. v. Brown Express, 161 Tex. 456, 341 S.W.2d 642 (1961) addressed whether the shipper or the motor carrier was negligent for a load of onions[2] that arrived in bad condition. The shipper had loaded the trailer despite it not being equipped with vents.
The trial court held that the shipper was negligent in loading the onions on an unvented trailer because a ventilated trailer is reasonably required for the safe transportation of onions by truck. But, the appellate Court concluded that an incorrect rule of law may have been applied since the responsibility for use of the unvented trailer rested upon the motor carrier given that the shipper neither had selected the trailer nor had been under any special obligation to determine that the trailer supplied by the carrier was suitable. It reasoned that the fact that the onions were loaded on an unvented trailer was not enough to establish that the shipper was solely responsible.
In Parsons Packing, Inc. v Pacific Gamble Robinson Co, 38 Agric. Dec. 762 (1979), the receiver supplied a flat bed truck with tarps for a load of onions sold f.o.b. When the shipper asked about using this equipment, it was informed that it would be all right to ship the onions on the truck. But, the onions arrived four days later damaged in excess of permitted tolerances.
The load was accepted, but with a deduction taken against the invoice price. However, given the high pulp temperature and unlikely proper ventilation, the Hearing Officer concluded that normal transportation services and conditions had not been shown and, therefore, the warranty of suitable shipping condition – assurance of delivery without abnormal deterioration at the contact destination under 7 CFR 46.43(j), was voided.
The general rule in an f.o.b. transaction is that the shipper will use reasonable care and judgment in selecting the transportation service and providing shipping instructions to the carrier. See Progressive Groves, Inc. v Bittle Fruit Market, 31 Agric, Dec 436 (1972). In this case, an unrefrigerated truck, which was poorly ventilated, was used for a shipment of oranges which had apparently become overheated after having sat on the dock for two days before being loaded despite being within grade tolerances with no signs of decay. But, they were moldy when unloaded at destination.
There was testimony to the effect that shipment in this fashion would allow heat to continue to build up in the oranges and aggravate the growth of mold. The Hearing Officer held that it was the shipper’s obligation to cool them down prior to delivery to retard deterioration and that shipping under these circumstances was inappropriate and violative of the shipper’s implied warranty of reasonable care.
As discussed briefly above, the shipper, depending on the circumstances, may or may not be liable, in whole or in part, for the type of trailer used.
[1] Law Office of David G. Ballard, PO Box 935, Meridian, Idaho 83680. This Article is for general information purposes only and is not and should not be construed to be formal legal advice, a legal opinion of any nature whatsoever, the formation of an attorney-client relationship, or the solicitation of professional employment.
[1] A commodity exempted from the application of the Carmack Amendment, 49 USC § 14706.
