Meuers Law Firm
Weekly Trouble Report
November 17, 2015
The PACA Law Perspective

Abnormal Transit:  Temperature Tapes
by Steven E. Nurenberg

When produce arrives at the contract destination in poor condition, disputes often arise as to whether such condition resulted from abnormal transit time or temperature. Recently, we received an inquiry from a client concerning a rejected shipment of produce for which a temperature recorder had gone missing. This week, we take a brief look at the use of temperature recorders or tapes to establish abnormal transit and what happens when they cannot be located.
In an f.o.b. transaction, produce is placed "free on board" the carrier and the buyer assumes all risk of damage and delay in transit not caused by the seller. (Contrast with: A delivered sale is the opposite of an f.o.b. sale; the seller is responsible for the cost of freight and assumes all risk of loss in transit not caused by the buyer.) The seller "warrants" that the shipment is in suitable condition to arrive at the contract destination without abnormal deterioration. The U.S. grade description for the product applies only at the shipping point. Thus, it is possible for produce sold f.o.b. to fail to meet U.S. grade tolerances at the contract destination, yet still make good delivery under the seller's warranty of suitable shipping condition.  
If the product arrives in poor condition, the buyer may reject the shipment within certain time constraints set forth in the Federal Regulations. As long as the rejection is procedurally valid under the Federal Regulations, i.e. within the time limits and properly communicated to the seller, title automatically reverts to the seller. To demonstrate that the shipment failed to make good delivery and thus justify its rejection, the buyer must prove that the product suffered abnormal deterioration under normal transit conditions. Typically, proving abnormal deterioration of the product is accomplished through an inspection conducted by the USDA at the contract destination.
Conversely, the seller's warranty of suitable shipping condition is void when the transit conditions were abnormal as a result of delay or improper temperatures. Transit conditions are generally presumed to be normal; thus, the seller has the burden of raising the issue and proving the abnormal conditions. We will address abnormality caused by delay in a separate Produce and the Law article. For the purposes of this article, we focus upon abnormality related to transit temperatures.
Many shipments of produce include a temperature recorder or tape to verify that proper temperatures were maintained by the carrier throughout transit. Sometimes, the temperature recorder or tape is missing when a shipment is rejected at the contract destination, leading to a dispute as to whether the temperature was properly maintained. The USDA's policy when ruling on disputes when a temperature recorder or tape is either not employed or missing is to assume that the transit conditions were abnormal. One of the leading cases on this issue is Sharyland, LP v. Lloyd A. Miller, 57 Agric. Dec. 762 (1998). Therein, the USDA observed that the only two parties with the opportunity or motive to "lose" a temperature recorder or tape are the receiver and the carrier. In either case, the presumed motive is that the tape would have disclosed abnormal transit conditions, potentially relieving the seller of damages claimed by the buyer.
It should be noted, however, that the presumption of abnormal transit temperatures does not automatically mean that those temperatures caused the damage to the product. If the buyer can prove that the damages found on inspection are of the type that could not have been caused or aggravated by the abnormal temperatures, then it may still have a claim against the seller for breaching the warranty of suitable shipping condition. This exception to abnormal transit conditions is appropriate when damage is so excessive that the product would clearly have been abnormally deteriorated upon arrival at the contract destination even if transit conditions had been normal.

Generally, the use of a temperature recorder or tape is highly recommended when proper transit temperatures are necessary for a shipment to make good arrival at the contract destination. If you have additional questions regarding the use or significance of temperature recorders, please contact our office.

  Meuers Logo - Signature Block 






The Meuers Legal Team 



Lawrence H. Meuers


Steven E. Nurenberg 


Steven M. De Falco

    5395 Park Central Court

    Naples, FL  34109-5395


    Telephone:  (239) 513-9191

    Facsimile:  (239) 513-9677 


Produce and the Law is provided as a service to those in the produce industry who have requested to receive it. The PACA Law Perspective is intended to provide readers with information regarding legal issues and should not be construed as legal advice or legal opinion. The hiring of a lawyer is an important decision that should not be based solely upon advertisements. Before you decide, ask us to send you free written information about our qualifications and experience.