Fine Foliage of Florida, Inc. v. Bowman Transp., Inc.

• Citation: 698 F. Supp. 1566
• Decision Date: 09 November 1988
• Docket Number: No. 87-1041-CIV-ORL-18.,87-1041-CIV-ORL-18.
• Parties: FINE FOLIAGE OF FLORIDA, INC., Plaintiff, v. BOWMAN TRANSPORTATION, INC., Defendant.
• Court: U.S. District Court — Middle District of Florida

698 F. Supp. 1566

FINE FOLIAGE OF FLORIDA, INC., Plaintiff, v. BOWMAN TRANSPORTATION, INC., Defendant.

No. 87-1041-CIV-ORL-18.

United States District Court, M.D. Florida, Orlando Division.

November 9, 1988.

Harlan L. Paul, James, Zimmerman & Paul, DeLand, Fla., for plaintiff.

Mark P. Reuter, Kroll & Tract, Miami, Fla., Kenneth E. Cohen, Hollywood, Fla., for defendant.

FINDINGS OF FACT AND CONCLUSIONS OF LAW

GEORGE KENDALL SHARP, District Judge.

This case was tried before the court without a jury. Based upon the facts admitted by the parties in their joint pretrial stipulation, the testimony, the evidence admitted at trial, and the facts found by the court at trial, the court enters the following findings of fact and conclusions of law pursuant to Rule 52(a) of the Federal Rules of Civil Procedure.

FINDINGS OF FACT

Plaintiff Fine Foliage of Florida, Inc., a Florida corporation located in DeLeon Springs, Florida, is a grower, buyer and international shipper of decorative ferns, used in floral arrangements. This case concerns an April 29, 1987 shipment of 939 cartons of 361,800 sprays of leatherleaf fern (Rumohra adiantiformis) from DeLeon Springs for ultimate arrival in Tokyo, Japan on May 23, 1987. When inspected on May 29, 1987, in Tokyo, the fern was found to be a total loss, which was attributed to exposure to freezing temperatures. Defendant Bowman Transportation, Inc. is a common carrier, interstate trucking company, which was employed for the inland transportation of the fern.

As required by Japan, the subject fern was inspected at Fine Foliage on April 28, 1987, by the United States Department of Agriculture, and was found acceptable for shipment. Plaintiff contacted Wilk Forwarding Company, an international freight forwarder which has represented plaintiff's export business for approximately twelve years, for the purpose of effecting shipment of the subject leatherleaf fern from DeLeon Springs to Toyko. In turn, Wilk Forwarding arranged the inland transportation from DeLeon Springs to Jacksonville, Florida with defendant and the remainder of the trip, including sea passage, with Mitsui O.S.K. Lines, Ltd. (Mitsui). John Wilk of Wilk Forwarding testified that defendant was instructed to provide a semi-truck, forty-foot refrigerated container (reefer), which would be maintained at 39° Fahrenheit. Plaintiff had used defendant Bowman many times in the past for inland transportation of fern.

The testimony clarified that it is common knowledge in the fern business that perishable fern must be shipped at temperatures varying only from 38° to 40° Fahrenheit. Following harvest, fern is immersed in a hydrocooler and treated with fungicide. Subsequently, the fern is packaged in plastic, placed in cartons, and stored in an air-cycled cooler at 38° to 40° Fahrenheit while awaiting shipment. Jack Shuman, one of plaintiff's principals, testified that plaintiff's fern is not subjected to temperatures lower than 38° Fahrenheit or higher than 42° Fahrenheit prior to shipment. When fern is exposed to freezing temperatures, 32° Fahrenheit and below, for a sufficient time, the plant cells are destroyed and the rotting process commences. While fern may appear dark green in a frozen or not completely thawed state, three to five hours after thaw, the fern becomes brown. In order for a layer of ice to form in the shipping carton, the fern has been subjected to freezing temperatures and damage has occurred. Ray Hagstrom, whose family has been in the fern business for sixty years and who is a competitor of plaintiff, testified that fern could not survive two hours at 0° Fahrenheit.

Because maintenance of the proper temperature is critical to the shipment of fern, it is standard in the industry to place a Ryan recorder, a specialized recording or charting thermometer, on the reefer. Shuman testified that plaintiff "always" uses a Ryan recorder for fern shipments. The Ryan recorder, capable of charting the temperature within the container for thirty-two days, generally is placed in the container halfway through the loading of the fern, and usually is sealed. At the end of the inland transportation when the fern is unloaded for the overseas portion of the shipment, the temperature chart is consulted. Deviation from the required temperature results in a survey of the fern to determine if it has been damaged before the shipment is sent abroad.

Defendant had in effect at the time of the subject shipment an Interstate Commerce Commission (ICC) Container Tariff applicable within the United States to interstate traffic when such transportation was performed by owner-operations leased to defendant. Item 810 of the tariff, ICC BOWM 700-B for Bowman Transportation, Inc. states as follows:

PROTECTIVE SERVICE

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.

Wilk, who frequently had obtained defendant to transport fern for plaintiff, testified that on all past occasions the container temperature had been set at 38° to 40° Fahrenheit. He also testified that Bowman never had told him that it would not absolutely guarantee temperature control. Richard Sobeyroux, a Jacksonville Bowman employee, testified that defendant is aware of the differing refrigeration temperatures for transportation of such shipments as fern or produce. Furthermore, Sobeyroux testified that it is common knowledge in the industry that fern is shipped between 38° to 40° Fahrenheit.

Defendant leased the forty-foot refrigerated container from General Transportation Services in Jacksonville, Florida on April 28, 1987. The equipment interchange receipt indicates that the temperature setting was to be 39° Fahrenheit. Leonard Davis, the Bowman driver, obtained the reefer at the Bowman Jacksonville yard at approximately 9:30 p.m. on April 28, 1987.

En route to DeLeon Springs, Davis stopped and "fired up" or activated the container cooling system. He testified that he assumed that the cooling blower unit was operating. He also testified that no one instructed him to check the temperature setting on the unit. While Sobeyroux explained that most drivers are not educated to adjust the temperature setting of the Ryan recorder, Davis testified that there is another thermometer on the front of the container close to the cab. Apparently, this thermometer allows the driver to monitor the temperature inside the container. From experience and instruction, Davis testified that he had hauled enough fern to "know that the fern is supposed to go between thirty-eight and forty degrees."

Davis arrived at Fine Foliage in DeLeon Springs at approximately midnight, and slept in the truck while waiting for the cooling system to cool the container. He was awakened at 8:00 to 8:30 a.m. on April 29, 1987, when plaintiff's employees informed him that the cooling blowers had not been operating and that the container had not pre-cooled. Davis testified that one of plaintiff's employees "punched the reset button," the blowers were activated, and the container door was closed for thirty to forty-five minutes in order for the reefer to cool.

Davis testified that plaintiff's employees loaded the container from approximately 9:30 to 10:30 or 11:00 a.m. on April 29, 1987, and sealed the container. Unless he is paid to do so, Davis does not assist with the loading. After the reefer was loaded and sealed, Davis left Fine Foliage in DeLeon Springs at approximately 11:00 or 11:15 a.m. on April 29, 1987, and drove the fern shipment to Savannah, Georgia.

Defendant transported the inland portion of the subject fern shipment from DeLeon Springs to Savannah under two bills of lading. The first bill of lading, dated April 29, 1987, and arranged by Wilk for the DeLeon Springs to Jacksonville transit, is signed by defendant's driver Davis. It states that the shipper is plaintiff in DeLeon Springs, Florida, and that the consignee is Classic Japan Ltd. in Tokyo, Japan. It further identifies the trailer as MOLU 502013-4, the Ryan recorder as 534552, the contents as 939 cartons, and the seal as # 918700. The temperature is listed as "39 Degrees," and conspicuously imprinted on the bill of lading are the words: "PERISHABLE Keep From Heat or Frost." While the bill of lading is not a Bowman document, it, nevertheless, neither mentions Bowman's tariff, Item 810, nor incorporates defendant's tariff or its long-form bill of lading.

Davis admitted signing this bill of lading on which the 39° Fahrenheit temperature is designated. He, however, testified that he did not read the document and that it was merely part of the customary paperwork that he was required to sign. He testified that he was aware that there was a Ryan recorder in the reefer, but that he did not know the temperature setting. His signature appears on a separate Ryan recorder thermometer notice, dated April 29, 1987.

The second bill of lading, dated April 30, 1987, and arranged by Mitsui through its agent Strachan Shipping Company, is a Bowman straight bill of lading and covers the Jacksonville to Savannah portion of the inland transportation of the subject fern pursuant to an overriding equipment interchange. In effect, Bowman was hired for the Jacksonville to Savannah portion of the trip by Mitsui. The Mitsui equipment interchange receipt, dated April 30, 1987, states regarding the temperature setting, "Set 0° F. Tep + 10° F." The fine-print portions on the copy of the second bill of lading entered into evidence are illegible. Consequently, there is no readable indication, if any, of Bowman's tariff, Item 810, or of the incorporation of its tariff or longform bill of lading. Bowman employee Sobeyroux testified that neither Mitsui nor Strachan advised that the temperature should be protected on the reefer from Jacksonville to Savannah.

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