Sour pickles not spoiled
By Henry E. Seaton
Reprinted from etrucker.com
Q We recently delivered a load of pickles sealed in glass jars, packaged in boxes and shrink-wrapped onto pallets. At delivery, the trailer seal had been broken, but the freight clearly was intact; none of the pallets had been moved, the shrink wrap was not cut, the boxes were not open and the lids were still on each pickle jar. Still, the consignee rejected the load, and the shipper – out of fear of product liability or possible terrorist contamination – destroyed it and demanded we pay for the unmitigated loss. What are my options?
A You are in a fine pickle, but I do not think you are liable for the loss under this unique fact situation. There is no evidence to suggest that the absence of the seal, whatever the cause, was a result of the act of a terrorist, or that the shipment was in any way contaminated as a result. There currently is no federal mandate that foodstuff shipments be delivered with seal intact or that the absence of a seal requires destruction or quarantine of the goods. The shipper would be hard-pressed to prove that there was any foundation for its fear of contamination, since the shrink wrap, the boxes and the jar lids all were intact.
Clearly, the consignee has the duty to mitigate any prospective loss and to accept a shipment that is not “practically worthless.” If someone with a larcenous heart broke the seal in transit, more than likely they concluded a load of pickles could not be fenced easily. To believe someone intentionally contaminated the pickles is far-fetched.
Unless you signed some contractual provision that waived the shipper’s duty to mitigate or allowed unrestrained discretion under these odd circumstances, I do not believe the shipper can establish your liability under the statute.
Also, one of the five common law exceptions to liability is “act of the public enemy.” That exception is little used and does not apply to garden-variety thieves. Yet, our nation has declared “war on terrorism,” and if a terrorist were to contaminate a water supply or poison the food chain, no doubt the public enemy exception could be argued. It follows that a shipper’s decision to destroy a load out of fear of such an action could similarly qualify as an exclusion to liability.
Finally, it should be noted that often seal-intact requirements exist for fungible goods like bulk shipments of flour, corn syrup, etc., but the possibility of contamination to individually wrapped and boxed goods is a different matter.
–Henry Seaton is a transportation lawyer who represents carriers.