Belated Temperature Variance Claims

Belated Temperature Variance Claims

Copyright 2004, Traffic World, Inc.

Q:

We, a motor carrier, picked up an LTL shipment of frozen foods in Seattle for delivery in Atlanta. Without notifying our dispatcher, the shipper put a temperature recorder accompanying the shipment. The recorder was listed on the bill of lading at time of pickup.

The product delivered back in June and the bill of lading was signed without notation. It is now October, and for the first time the customer is now claiming the shipment was subject to temperature variations of between three and 40 degrees over a period of eight hours during the week-long transit time.

Does this fall under the nine-month window to file a claim? If so, when a consignee signs for something without notation does this really mean anything?

A:

As to your last question, it seems to mean this consignee didn''t check the temperature recorder at the time of delivery.

Certainly the claim is within the nine-month permissible period for filing. Unless somebody''s been fooling around with the calendar behind my back, June to October is only four months, so the claim is timely filed. I know carriers like a short fuse for concealed damage claims - which this is given the consignee''s failure to check the temp recorder on delivery. Item 300135 of the National Motor Freight Classification, for example, purports to set 15 days as a maximum period for reporting concealed damage. But the carriers'' preference doesn''t alter the shipper''s rights under the law.

Still, there''s some phrasing in Item 300135 that does pretty much comport with the law; it says that, for concealed damage reported more than 15 days downstream, "it is incumbent on the consignee to offer reasonable evidence to the carrier''s representative ... that loss or damage was not incurred by the consignee after delivery ..." The law doesn''t go that far, but it does place a burden on claimants to prove the damage took place while the goods were in the carrier''s custody and lengthy delays in reporting damage obviously make this burden heavier.

In this instance I consider the claimant''s burden to be quite heavy indeed. I can understand the consignee''s failure to check the temp recorder at the time of delivery (the process can be a bit tedious, and also, depending on the type of recorder, may involve hooking the unit up to a computer for output).

But what happened to July, August and September? And what, for that matter, became of the goods meantime?

To successfully maintain its claim in court the claimant would, first, have to overcome the taint that the lapse of time has cast on the temp recorder information. Then it would have to show that it still has the goods in its possession - these particular goods, by lot number or whatever. Next it would have to show that the alleged discrepancy in the transit temperature renders the goods unsaleable or unusable, or reduces their value by some objective measure, or requires remedial measures (such as flash freezing) at a specific cost. Finally, you''d be entitled to challenge this evidence on the ground that post-delivery handling by the consignee was actually responsible for the damage, a challenge it would be obliged to rebut.

Mind you, I''m not saying this burden is insuperable. Especially if the "period of eight hours" during which the temperature allegedly varied so dramatically coincides with a time when the shipment was platformed, another delivery from the van was being made, the driver reported trouble with his reefer unit, etc., it''s quite possible that the event did occur, the consignee simply has careless claim-filing practices, and you''re liable. But the claimant faces a fairly steep uphill climb to prove that after a lapse of so much time.

What I''ve described so far is how this matter would play out in court. Your question, however, was couched in more pragmatic terms - in effect, what should you do? My suggestion is that you respond to the claim with a series of inquiries basically challenging the claimant to meet the same burden of proof a court would impose, as outlined above. The claimant may well get indignant with you, but given its laxity in reporting the recorder data to you it has scant cause. And if it gets over its hissy-fits and provides you the responses and evidence required, you''ll then have a factual basis for evaluating the merits of the claim.

One other possibility occurs to me - that, rather than responding to your inquiries, it simply "sets off" the claim against freight charges it owes you. In such a case I''d sue, not only for the unpaid charges but any applicable late-payment penalties. That would compel the claimant to prove its case in court as a defense against your suit, which, as I''ve said, won''t be all that easy.

Lastly, you make much of that business about the temperature recorder being installed "[w]ithout notifying the dispatcher."

Why, pray tell, should the dispatcher have been notified? Why, for that matter, is it relevant that the recorder was noted on the B/L? In the shipper''s shoes I''d do both things, the better to encourage more careful handling of the load. But neither is required in either law or (unless your tariff so states, which I doubt) commercial practice.



-- Consultant, author and educator Colin Barrett is president of Barrett Transportation Consultants. Send your questions to him at P.O. Box 76, Morganton, Ga. 30560; phone, (706) 374-7201; fax, (706) 374-7202; e-mail, BarrettTrn@aol.com. Contact him to order the 536-page compiled edition of past Q&A columns, published in 2001, at $80 plus shipping.