Commentary: Delivery Delay Gives Carrier the Chills

Q: We’re a motor carrier and had a fairly unusual load of refrigerated goods recently. It was partly fresh produce and partly four pallets of mixed frozen foods. We were told to keep the temperature at 36 degrees, and that the frozen stuff had been held at 10 degrees and would be OK.

The trip was 538 miles; pickup was at noon Thursday, and delivery was scheduled for 7 a.m. Friday. But the driver got two flat tires, and was delayed several hours. He then ran out of allowable driving time and had to take his rest period.

Bottom line, the shipment didn’t arrive until 7 p.m. Friday. But the consignee couldn’t unload, and rescheduled him for 7 a.m. Saturday. After the driver left, the consignee sent an e-mail telling us to take the temperature down to 25 degrees, but the office was closed, and we didn’t get the e-mail until the next day.

When our driver made delivery Saturday morning, the consignee basically cherry-picked the load, refusing most of the frozen food and some of the produce as damaged. It also noted the interior temperature was 38 degrees, not 36. The shipper refused return of the rejected goods, so we disposed of them. Now it’s claiming $30,000-plus for the delay. Are we liable?

A: No, I don’t think so.

This shipper took a chance to save a few bucks, mixing frozen and freeze-sensitive products on the same truck. If all had gone as planned, it probably would have been a successful gamble; the frozen stuff would have arrived still frozen, the fresh produce unfrozen, and the cost of two separate shipments could have been avoided.

But, as poet Robert Burns warned, “the best-laid plans o’ mice and men gang aft agley.” The truck was delayed unexpectedly, there was a further delay caused by the consignee’s business hours, and the result was damage to this load.

You’re liable for the consequences of delay, but only if the delay was “unreasonable” and if it wasn’t the responsibility of the shipper or consignee. I don’t believe a 12-hour delay qualifies as unreasonable for a 538-mile trip, and the rest of it was the consignee’s doing.

I might say otherwise if the shipper had paid for guaranteed delivery (assuming you offer it). But you phoned your question in, I asked you about this, and you said it didn’t. So your obligation was only to transport with “reasonable dispatch,” and so far as you tell me, you met that obligation.

To be sure, the shipper gave you 19 hours to traverse those 538 miles, which represent only 10 to 11 hours of actual driving time. Even if your driver had been forced to stop en route based on hours-of-service rules, he still should have showed up some time Friday morning. So the delay until early evening was clearly unusual.

Unusual, however, doesn’t necessarily equate to unreasonable. Trucks do get flat tires and otherwise have breakdowns, and there’s no fault to be assigned for such an event. And, given the rule-required rest period, the 12-hour-late delivery surely falls within reasonable parameters.

As I say, the rest of it was the consignee’s fault. I’m not casting blame on it, because it was after hours when your driver finally arrived. But the goods might still have been OK (or mostly OK) had the consignee been prepared to receive them when they got there, and you can’t be held liable because it wasn’t.

That two-degree variance in the truck temperature is trivial; the goods would have fared little differently. The e-mail notice about dropping the temperature was too little and too late, and the consignee should have known it; if it wanted the temperature cut back, it could have told the driver when he first arrived, but you say it didn’t. And, even if it had, this would have frozen (and damaged) most of the produce, and saved little economically.

The shipper took a gamble sending out this oddly mixed load with no delivery guarantee. When you roll the dice, sometimes they come up boxcars and you lose. I can sympathize with the shipper for its loss.

But its gamble isn’t yours, and I don’t think you can be held liable for that loss. As I see it, in the circumstances, you met your duty to transport with reasonable dispatch and, accordingly, you haven’t rendered yourself liable for the economic injury it suffered.

This is admittedly a fairly close question involving a judgment call, but my judgment is that you don’t owe this claim.

Consultant, author and educator Colin Barrett is president of Barrett Transportation Consultants. Send your questions to him at 5201 Whippoorwill Lane, Johns Island, S.C. 29455; phone, 843-559-1277; e-mail, Contact him to order the most recent 351-page compiled edition of past Q&A columns, published in 2010.

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