Road Scholar Transportation

The blistering cold winter conditions have many shippers worrying about the safety of their products, especially during transport.  In fact, more and more shippers are making protect from freezing a high priority when choosing a trucking company, a task that carriers find harder to do than keeping the product frozen or refrigerated.

Let’s pretend your child is due for a vaccination.  This particular vaccine, as is common with many others, has a storage temperature of 2–8◦C (refrigerated).  When exposed to temperature conditions above or below this range, the vaccine losses its potency and becomes ineffective.  Now imagine that your child’s vaccine was just transported 500 miles in -10◦C freezing weather.  Would you still let this vaccine be administered into their arm?

As Pharmaceutical & Medical Packaging (PMP) News notes, “countries have imposed stricter guidance and regulation for cold-chain shipments, auditors to an increasing extent are demanding proof that cargo temperatures are held within label or haven’t exceeded stability data parameters,” shippers are taking a tightened approach, especially on long distance shipments where products are susceptible to long-term exposure of improper temperatures resulting in the freight having to be destroyed. (http://www.pmpnews.com/article/tightening-protective-transport.

PMP News further explains that a carrier’s trailer can reach temperatures as low as –10°C in winter conditions, hazardous to even refrigerated shipments, a concern that has caused the FDA to consider making “CRT a new category for which companies have to provide documentation of temperature maintenance.”

In order to avoid liability issues as well as damaged products, companies are utilizing temperature-monitoring devices to ensure compliance as well as alternative methods to prevent their freight from freezing.  These include thermal blankets/packaging, polyurethane containers, and of course, temperature-controlled trailers.

Researchers continue to develop newer, innovative ways to sustain freight temperatures during transport, especially for high-risk products such as pharmaceuticals, which have strict temperature expectations.

According to a 2007 study, “Between 14% and 35% of refrigerators or transport shipments were found to have exposed vaccine to freezing temperatures, while in studies that examined all segments of distribution, between 75% and 100% of the vaccine shipments were exposed (http://www.path.org/vaccineresources/files/coldchainarticle.pdf).

Most vaccines, including those that do not have a specific storage condition listed, are kept refrigerated or at room temperature and kept away from excessive heat or freezing conditions which can denature the protein found in the medication and cause it to be inefficient.

Not only are pharmaceuticals at risk when temperature conditions change but food, chemicals, and even blood.

Take the American Red Cross for example.  The organization distributes over 10 million units a year of products that are very temperature sensitive.  While some products, such as red blood cells, need to be frozen, platelets must maintain a strict room temperature of 20° to 24°C, PMP News explains.  And with someone needing blood every 2 seconds, improper transporting conditions cannot be taken lightly.

Carriers and shippers understand the risks of temperature control shipments, which is why many of them have incorporated into their company policies statements omitting them of liability for temperature damage.

For example, Eco Safety Products Inc. (which specializes in paints, coatings, stains, and more) has incorporated into their shipping policy the following:  “Standard LTL freight carriers and common carriers such as FedEx, UPS, DHL, will not guarantee freeze protection during the winter months. Many water-based products may be damaged if frozen and neither the carrier nor Eco Safety Products can be held responsible for such damage. The customer may elect to pay for freeze protection on an LTL freight carrier for an additional charge. This option is not available through FedEx, UPS, DHL, etc.”  (http://www.ecoprocote.com/terms.asp).

Wine company Green Jug Fine Wine & Spirits also has a similar shipping policy stating:  “Prolonged exposure to heat and freezing temperatures can damage wine. Carriers do not insure against heat or cold damage, and we are unable to take responsibility for such damages after your wine has safely left our store” (http://www.greenjug.com/shopcontent.asp?type=shipping).
But what this company may not realize is that shippers and carriers can be responsible.

Let’s look at the case of Fine Foliage of Florida, Inc. vs. Bowman Transportation, Inc. (information provided by http://law.justia.com/cases/federal/appellate-courts/F2/901/1034/46333/).

Fine Foliage of Florida, Inc. went through Wilk Forwarding Company (freight forwarder) to find a carrier to transport 939 cartons of ferns from DeLeon Spring to Jacksonville, Florida, in which they contracted Bowman Transportation, Inc. Through Strachan Shipping, Bowman was to then transport the shipment to a port in Savannah for delivery to Tokyo, Japan.

For the first part of the trip (DeLeon Springs to Jacksonville), Fine Foliage specified on the bill of lading that the shipment was to be transported at 39°F and included the instructions, “PERISHABLE Keep From Heat or Frost,” for when exposed to freezing conditions, the plant cells are destroyed and the fern loses its healthy color.

Bowman’s driver, who acknowledged that he knew the ferns needed to be shipped between 38 and 40°F, signed the BOL without reading it.

The reefer that Bowman used was leased from General Transportation Services with a preset temperature of 39°F; however, due to the cooling system not working properly, Fine Foliage reset the trailer before loading the ferns onto the truck.

When the load arrived at Savannah, it was determined that the trailer was set at 0°F.  The carrier who was to transport the shipment overseas noted the temperature of trailer when it was received along with a note in the BOL claiming that it was not responsible for damages.

The receiver in Japan, noting the improper temperature conditions, refused the load, contacting Fine Foliage in doing so, who, in return, filed a suit against Bowman for $21,000 due to the driver not maintaining the specified temperature inside the trailer.

Using the Carmack Amendment, which specifies that “a common carrier is liable for the actual loss or injury to goods in an interstate commerce shipment,” Fine Foliage was able to prove that the ferns were given to the carrier in proper condition, that they were damaged when they arrived in Japan, and that the load was destroyed.

The court ruled that Fine Foliage had a prima facie case.

Bowman argued that they had “filed a Container Tariff with the ICC, Item 810” when shipping that stated, “Under the provisions of this tariff, BOWM will NOT accept shipments that require BOWM to provide refrigeration or other protective service. Shipments accepted by BOWM which are subject to temperature damage are accepted only at shipper’s risk and responsibility.”

Being that there were two BOLs, the court ruled that the first BOL was not Bowman’s, and therefore, the tariff did not apply, while the second BOL did not reference the tariff, leading the court to discard the tariff as preventing Bowman from liability.

And although Bowman noted numerous cases in which carriers were not found liable for freezing a shipper’s products, the court explained that in those cases, the shipper did not request a protective service like they did in this one and that Bowman was liable.

Who do you think was at fault in this case, Fine Foliage who did not vet out the carrier, Wilk Forwarding Company who chose the carrier, Bowman Transportation who transported the shipment, General Transportation Services who leased the reefer or all of them?  Do you think that carriers should be liable for temperature damaged products?  List your comments below.