Q&A: Keeping It Cool

Q&A: Keeping It Cool

Copyright 2003, Traffic World, Inc.

Q

Just finished reading your Sept. 15 article about the owner-operator couple who had their reefer tied up for several days when the consignee refused a load in a dispute over the load temperature. As a former frozen foods warehouse manager and private reefer fleet manager, your column brought back many bad memories.

You omitted probably the most important advice. Specifically, if an owner-operator is going to haul temperature-controlled foods, he or she should buy an inexpensive thermometer. All loads must be "stuck" when received and the temperature of random cases recorded on the bill of lading at the time. Enough sample temperatures should be recorded to ensure that the load is the temperature that the shipper claims.

Drivers should agree only to maintain the temperature of the load when it is received - no more, no less. If the shipper wants his product temperature lowered, there should be an extra charge - exactly as warehouses charge. But because so many variables are involved (actual product temperature and mass, type of product, ambient temperature, condition of trailer, time of transit), it''s next to impossible to specify whether or how long it will take to lower the product temperature to some specific target level. Setting the reefer to X degrees doesn''t guarantee that the product will be lowered to X degrees.

To make a long story short (and I think I read this in one of your books), the best way to handle a claim is to avoid it in the first place.



A

Very good advice, although you''re going to find shippers who object vociferously to this practice and in the real world the owner-operator probably will lose some loads. I don''t mean to cast aspersions on anyone''s integrity but it does happen that shippers will ship "hot" - above the stated temperature - and hope the reefer unit setting will drop the temperature sufficiently to satisfy the consignee (as may well have happened in the original case I discussed).

I''d offer one emendation to your otherwise excellent suggestions, though: in my opinion a carrier should never agree to an instruction that the temperature be lowered in transit. As you say, there are an awful lot of variables. Moreover, this may to some extent involve perpetrating a fraud on the consignee if it''s an effort to conceal the fact that the goods were above their optimum temperature when loaded.

To my mind carriers should stick to being carriers, providing a transportation service and not moonlighting as refrigerated warehouses. Given the extraordinary liability that carriers assume, to do otherwise is simply too risky.





Dispute over class rating



Q

We ship one product at a particular class rating. One of our carriers is consistently correcting our bills of lading to a higher rating and others occasionally do so. We don''t necessarily agree but we''ve reviewed the commodity description and realize there''s some justification for the correction. We don''t dispute the corrections but we''re continuing to use the lower rating on our B/Ls and it''s generally accepted.

Now it''s time to renegotiate with our carriers. Should we stick with using the lower rating? Or should we accept the higher one and try to negotiate it down?



A

Come on. You''re tiptoeing all around the issue but the fact is that you know quite well the higher rating applies, don''t you? I mean, why else wouldn''t you dispute the carriers'' corrections? Because you believe that not only would you lose, in the process you''d draw attention to the discrepancy, which is the last thing you want. So you''re intentionally misdescribing the commodity in your prepared B/Ls - in order, one presumes, to save a few bucks in freight charges.

I''m not going to give you a lecture about ethics but you face some possible practical consequences. There''s a legal school of thought that a shipper''s misdescription of the goods may relieve a carrier, in whole or in part, of loss-and-damage liability. One key test is whether the misdescription induced the carrier not to take precautions it reasonably might have taken had it known the goods'' true nature. You identified the goods to me and that doesn''t seem to be an issue here.

But a second test is whether the misdescription was fraudulently intentional; see Head v. Pacific Exp. Co., 126 S.W. 682, and the Bills of Lading Act, 49 U.S.C. ?80113(b), can also be read that way. And here you''re on a lot shakier ground. There''s a real possibility that the savings you''re realizing through your persistent misdescription of this product could be more than offset by a single claim for which the carrier might escape liability.

So ''fess up in your new negotiating round and work instead to get either an exceptions rating or a reduced rate for the correct rating. It''s not only more honest, it''s a good deal safer.



-- 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.