CARGOBARN INC. SERVICE GUIDE AND TERMS AND CONDITIONS
CARGOBARN INC. IS A CALIFORNIA CORPORATION THAT OPERATES AS AN INTERSTATE PROPERTY BROKER, AS DEFINED IN 49 U.S.C. § 13102(2) AND 49 C.F.R. § 371.2(a), UNDER MC # 675107 AND USDOT # 2244194 IN ARRANGING FOR THE TRANSPORTATION OF FREIGHT BY AUTHORIZED MOTOR CARRIERS. CARGOBARN INC.IS NOT A CARRIER AND DOES NOT OPERATE AS A MOTOR CARRIER OR OTHER TYPE OF CARRIER.
EFFECTIVE DATE: JANUARY 18, 2018
The Terms and Conditions set forth herein shall apply to all loads of freight that CARGOBARN INC. (hereinafter “CARGOBARN INC.”) arranges to be transported by motor carrier or any movements that may involve rail or intermodal transportation. These Terms and Conditions are subject to change at any time without notice. Interested parties should refer to the Terms and Conditions available on CARGOBARN INC.’s website at www.cargobarn.com for the most current version of Terms and Conditions, which will apply to all loads of freight arranged during the period in which such terms are in effect.
Section 1 – Scope and Applicability of Terms and Conditions.
1.1 Applicability of Terms and Conditions By offering, tendering or referring freight to CARGOBARN INC. to be arranged to be hauled, all parties, whether such party is acting as a shipper, consignor, receiver, consignee, freight forwarder, broker, intermediary, 3PL, 4PL, carrier, freight agent or otherwise (all of which will be referred to hereafter for convenience as a “Customer”), acknowledge and agree that these Terms and Conditions apply to any and all freight that any Customer or other party refers to CARGOBARN INC.. Most Customers have signed a Credit Application with CargoBarn Inc. that incorporates these Terms and Conditions by reference and/or CARGOBARN INC. will endeavor to send confirmation of tender of freight by written or electronic means (hereinafter a “Load Confirmation”) to Customer, which may expressly incorporate by reference these Terms and Conditions. In any event, these Terms and Conditions shall apply to all freight tendered or referred to CARGOBARN INC. to be arranged to be hauled, whether a Credit Application has been signed or submitted and whether a Load Confirmation or other document or communication incorporates these Terms and Conditions or not.
1.2 Acknowledgment of Broker Status. By offering, tendering or referring freight to CARGOBARN INC., Customer acknowledges and agrees that CARGOBARN INC. is an interstate property broker, as such term is defined in 49 U.S.C. § 13102(2), 49 C.F.R. § 371.2(a) and 49 C.F.R. § 386.2; that CARGOBARN INC. will be deemed to be acting solely as an interstate property broker (hereinafter “a broker”) in arranging for the transportation of freight by authorized motor carriers or otherwise with respect to all such freight; and, that CARGOBARN INC. does not operate, nor holds itself out to be, either a motor carrier, an non-vessel ocean common carrier (“NVOCC”), a rail carrier, a shipper’s agent, a carrier’s agent, or any other type of entity, other than a broker as defined in 49 U.S.C. § 13102(2), 49 C.F.R. § 371.2(a) and 49 C.F.R. § 386.2 with respect to any freight subject to ground transportation. Any use or reference of the terms “3PL,” “4PL” or “Supply Chain Management Provider” with regard to CARGOBARN INC. shall be deemed to have the meaning of a “broker” as defined in 49 U.S.C. § 13102(2), 49 C.F.R. § 371.2(a) and 49 C.F.R. § 386.2.
1.3 CARGOBARN INC. Broker’s Bond. CARGOBARN INC. will at all times maintain a broker’s security bond or trust fund in at least the minimum amount required by law.
Section 2 – Services to be Provided by CARGOBARN INC.
2.1 Arranging for Freight to be Transported via Motor Carrier. CARGOBARN INC. is an interstate property broker operating pursuant to authority granted to it to do so by the Federal Motor Carrier Safety Administration (“FMCSA”) under MC 675107 and USDOT # 2244194. As a broker, CARGOBARN INC.’s responsibility is limited to arranging for, but not actually performing, transportation of freight. Upon Customer’s offer, tender or referral of freight to CARGOBARN INC., if CARGOBARN INC. agrees to seek to arrange for transportation of such freight, CARGOBARN INC. will use its best efforts to arrange for such freight to be transported from its designated origin(s) to its appointed destination(s) by a motor carrier(s) authorized to operate as such by the FMCSA and the United States Dept. of Transportation (“USDOT”). CARGOBARN INC. will confirm that any motor carrier with whom it arranges to haul Customer’s freight holds a current license and is authorized to operate as a motor carrier by the FMCSA and USDOT and that such motor carrier has in place all insurance required to be carried under federal regulations for carriers of non-hazardous materials. CARGOBARN INC. may, but is not required to, also take such other measures as CARGOBARN INC. deems appropriate with respect to vetting and selection of motor carriers to transport Customer’s freight. CARGOBARN INC. reserves the right to decline or refuse to arrange for the transportation of any freight.
2.2 No Guaranty of Transit Times. CARGOBARN INC. makes no promise, warranty or guaranty of any pick-up, delivery or other transit times as it does not have a right to control, nor can or will it control, the means or manner through which the carriers that it arranges to transport the freight perform their duties.
2.3 No COD Service/Collect Shipments.
a) Because the carriers that CARGOBARN INC. arranges to transport freight are independent from CARGOBARN INC. and CARGOBARN INC. does not and cannot control the means by which the carriers perform their duties with respect to a load of freight, CARGOBARN INC. does not offer collection or “cash-on-delivery” (“COD”) services under any circumstance;
b) Arrangement for “collect” shipments (where the consignee is primarily responsible for the freight charges) may not be made through CARGOBARN INC.’s on-line system and can only be arranged through an authorized CARGOBARN INC. representative. On any “collect” shipment the shipper(s) shall nevertheless remain liable for the payment of the charges for CARGOBARN INC. arranging for transportation of the freight in the absence of timely payment of such charges by the consignee(s), whether the shipper signs Section 7 or any other non-recourse provision of any bill of lading or other document or not.
2.4 Agreements with Carriers. In each case in which a Customer refers freight to CARGOBARN INC. to be arranged for transportation of freight, CARGOBARN INC. will endeavor to enter into a written agreement with the carrier(s) with whom it arranges to haul Customer’s freight, which, among other things, will define the roles and terms that CARGOBARN INC. and such carrier will undertake with respect to such freight. Customer may request that CARGOBARN INC. provides Customer with a copy of the form of agreement that CARGOBARN INC. typically enters into with carriers, although Customer must recognize that the terms of CARGOBARN INC.’s agreements with carriers may vary from time-to-time.
2.5 Payment to Carriers for Freight Charges. CARGOBARN INC. will be responsible to pay each of the carriers with whom it arranges to transport Customer’s freight the appropriate amount of freight charges to be paid to such carriers. CARGOBARN INC. typically requires such carriers to agree in writing to waive any and all claims against Customer or others (other than CARGOBARN INC.) for payment of freight charges and to agree that such carriers will look exclusively to CARGOBARN INC. for payment of freight charges. CARGOBARN INC. will indemnify and hold harmless Customer from claims for freight charges from any carrier with whom CARGOBARN INC. arranges to transport Customer’s freight up to the amount of freight charges that CARGOBARN INC. has agreed in writing to pay such carriers, provided, however, that Customer has paid CARGOBARN INC. the charges for the load for which a carrier seeks payment and CARGOBARN INC. does not have other offset or claim rights against the carrier.
2.6 Bills of Lading.
a) CARGOBARN INC.’s role with respect to any freight tendered is that of a broker. Accordingly, each carrier with whom CARGOBARN INC. arranges to haul Customer’s freight is required to issue or adopt a bill of lading in compliance with 49 C.F.R. § 373.101. Such carrier’s name and MC# and/or USDOT # should be listed on any and all bills of lading. If CARGOBARN INC.’s name is inadvertently or otherwise listed on a bill of lading or other shipping document as the carrier or in any capacity, other than as a “third-party bill to” party or as a broker, such listing shall be deemed to be for convenience only and shall not change, alter, modify or be construed to change or modify CARGOBARN INC.’s role as an interstate property broker only with respect to any load of freight.
b) It is agreed as between Customer, CARGOBARN INC., the carrier arranged by CARGOBARN INC., and any other party with an interest in the freight or the transportation thereof, that the carrier will issue or will be deemed to have issued the bill of lading in each case of freight arranged by CARGOBARN INC. to be hauled by such carrier. Customer and CARGOBARN INC. agree that, as between CARGOBARN INC. and Customer, these Terms and Conditions shall prevail over the terms and conditions of any other bill of lading.
c) It is important that all information pertaining to the bill of lading be provided, including, but not limited to: i) the actual date the load is picked up by the carrier; ii) the shipper/consignor’s correct name, address, phone number and contact person; iii) the receiver/consignee’s correct name, address, phone number and contact person; iv) a correct and accurate description of the freight, including, but not limited to, the correct number of items or packages, estimated weight, and estimated value; v) designation of the freight as hazardous material (“HAZMAT”), and if applicable; vi) accurate and proper NMFC number and classification, if applicable; and/or vii) information necessary to safely transport food pursuant to the Food Safety Modernization Act of 2011, the Sanitary Food Transportation Act of 2005 and the FDA’s Final Rule with respect to the same found in 21 C.F.R. § 1.900 seq.; and, for international shipments, viii) the name of the Customer’s or consignee’s designated customs broker, together with address, phone number and contact person for the same.
2.7 CARGOBARN INC. is Independent from Carriers. ON ANY LOADS FOR WHICH CARGOBARN INC. ARRANGES FREIGHT HEREUNDER, THE CARRIER(S) THAT CARGOBARN INC. ARRANGES TO TRANSPORT SUCH FREIGHT IS INDEPENDENT FROM CARGOBARN INC. AND THE RELATIONSHIP BETWEEN CARGOBARN INC. AND ANY SUCH CARRIERS IS THAT OF AN INDEPENDENT CONTRACTOR. THE CARRIER(S) ARRANGED BY CARGOBARN INC. CONTROL THE MEANS AND MANNER AS TO HOW EACH SUCH CARRIER PERFORMS ITS RESPONSIBILITIES. CARGOBARN INC. HAS NO RIGHT TO CONTROL THE MEANS OR MANNER AS TO HOW ANY CARRIER OR OTHER PERSON OR ENTITY PERFORMS ITS RESPONSIBILITIES, NOR WILL CARGOBARN INC. ATTEMPT TO CONTROL THE MEANS OR MANNER BY WHICH A CARRIER OR OTHER PARTY DOES SO. TO THE EXTENT, IF ANY, THAT CARGOBARN INC. MAY PROVIDE INFORMATION OR SUGGESTIONS TO A CARRIER OR OTHER PARTY, WHETHER IT BE SUGGESTED CARE FOR THE CARGO, ROUTING, OR OTHER INFORMATION, SUCH INFORMATION OR SUGGESTIONS ARE SUGGESTIONS ONLY AND THE CARRIER OR OTHER PARTY TO WHICH ANY SUCH INFORMATION MAY HAVE BEEN PROVIDED RETAINS ALL CONTROL AND RIGHT TO CONTROL HOW IT PERFORMS ITS RESPONSIBILITIES. CARGOBARN INC.’S SOLE INTEREST IS IN ACHIEVING A RESULT AND NOT HOW A CARRIER OR OTHER PARTY MAY PERFORM ITS OBLIGATIONS TO ACHIEVE SUCH RESULT.
Section 3 – Rates and Information Communicated to CARGOBARN INC.
3.1 Rates for Arranging Transport. Rates provided by CARGOBARN INC. for CARGOBARN INC. arranging for the transportation of freight differ from rates that may otherwise be available from the carriers (whether contract rates, published rates, through tariff or otherwise, or rates that may be negotiated with a particular carrier) with whom CARGOBARN INC. arranges for freight to be transported for actually transporting freight or providing other services. CARGOBARN INC. is not obligated to Customer to disclose any rates or other conditions that it may have negotiated with any carrier with whom it has arranged to transport Customer’s cargo.
3.2 Information Pertaining to Freight. Customer will provide CARGOBARN INC. timely and accurate information regarding the subject cargo, including, but not limited to, pick-up and delivery locations, description of the cargo, including, but not limited to, type, dimensions, weight, special handling, temperature, storage, and/or security requirements, and other pertinent information regarding the cargo, including, but not limited to, any information necessary to comply with the Food and Drug Administration’s (“FDA”) Final Rule pertaining to the safe transport of human and animal food set forth in 21 C.F.R. § 1.900 et seq. (“the FSMA Rule”) or other laws or regulations pertaining to food safety, such as the Food Safety Modernization Act of 2011 and the Sanitary Food Transportation Act of 2005. CARGOBARN INC.’s Policy and Procedure pertaining to FSMA Rule is appended hereto and is hereby incorporated by reference. All rate quotes and other pricing by CARGOBARN INC. are prepared based upon the type of freight, dimensions and weight, and other information pertaining to the freight provided by Customer. Different equipment and different federal, state, and local laws may apply when the cargo to be moved exceeds certain width, length, height and/or weight limits or is of different type than that described by Customer. In such situations, the type of equipment necessary to complete the move can change if the actual type, dimensions, weight or other characteristics of the freight are different from those represented by Customer, whether through any internet/on-line rate quote system or otherwise; and, the costs of transporting the freight can increase substantially if the type, dimensions, weight, value or other characteristics of the freight are not communicated accurately and clearly to CARGOBARN INC. Although not an exhaustive list of factors that may increase the cost, some examples of such factors include, but are not limited to, changes in types of equipment, number of drivers, temperature control and monitoring, the need for over-weight/over-dimensional permits, pilot cars, pole cars, route surveys, specialized or alternative routing, restricted hours for transport, utility company support in moving or disconnecting overhead power lines, etc., state highway patrol support, local city planning support, and/or various other requirements (hereinafter “permit costs”), hazardous materials permits, increased insurance, secured services, and fuel surcharges. If the type of freight, actual weight or dimensions, value, handling requirements or other characteristics of the freight to be transported are different than originally represented to CARGOBARN INC., CARGOBARN INC. reserves the right to refuse to arrange for transportation of any shipment or to add reasonable costs, plus a reasonable mark-up on such costs, to the quoted amount to arrange for transportation of the freight.
3.3 Rate Quotes/Estimates. Rate quotes provided by CARGOBARN INC., whether through any on-line/internet system, telephonically, verbally, via e-mail, correspondence or otherwise, are merely estimates based upon the information provided by a Customer. While a rate quote may be a good faith estimate based upon such information, actual charges may vary based upon the characteristics of and conditions applicable to any shipment of freight at the time it is actually arranged to be transport or is actually transported and Customer agrees to pay any increase in the rate actually charged by CARGOBARN INC. and any quote or estimate provided by CARGOBARN INC. CARGOBARN INC. shall not be liable for any difference or variation in the amount of a quote/estimate and the amount actually charged for arranging transportation of freight for a Customer. Some of the factors that may cause an actual charge to vary from an estimate are, but are not limited to, availability of carriers, the type(s) of equipment that may be required, requested delivery dates and times, the origin(s) and destination(s) of the freight, the type, value, dimension and weight of the freight, the number of drivers that may be required, necessary permits that may be required, other accessorial services, detention times, specialized services, fuel surcharges, alternative routing or other factors. Rate quotes do not include accessorial or other charges not contemplated due to omissions or other inaccurate information provide by a Customer or for other unforeseen or varying circumstances, such as, but not limited to, delivery delays, re-delivery, re-consignment, detention, lumpers, trailer wash-out or other preparation of equipment to transport a load, lift-gate or other specialized equipment or requirements, residential or other locations of origins or destinations that are not easily accessible for delivery with the contemplated trucking equipment, delivery surcharges for remote or other locations, reclassification of the applicable commodity, etc.
3.4 Rate Quotes Based on Standard Service, Reasonable Dispatch. All rate quotes are based on the carrier proceeding with reasonable dispatch and without any guarantied time for pick-up or delivery and without any special, extraordinary or additional services, unless other services are specifically agreed to in writing by CARGOBARN INC. and the Customer and with the carrier that CARGOBARN INC. arranges to transport the cargo. CARGOBARN INC. will request that the carriers through which it arranges transport proceed in transporting the freight with reasonable dispatch in compliance with any and all applicable safety regulations, including, but not limited to, those regulations pertaining to hours of service. CARGOBARN INC. will communicate requested pick-up, delivery and transit times to such carriers; however, stated or requested transit times, pick-up dates and times and delivery dates and times are estimates and may vary based upon numerous factors. CARGOBARN INC. makes no guaranty of any pick-up, delivery or other transit times as CARGOBARN INC. does not have a right to control, nor can or will it control the means or manner in which the carriers that it arranges to transport the freight perform their duties. CARGOBARN INC.’s estimates of transit times do not take into account weekends, holidays, weather or other conditions; but, rather are based upon standard business days (i.e. Monday through Friday; 08:00 (8:00 a.m.) to 17:00 (5:00 p.m.) hours).
3.5 Trade Show and HAZMAT Shipments. Any rate quotes given by CARGOBARN INC. pertaining to trade show shipments or shipments of hazardous materials (“HAZMAT”) must be given by an authorized CARGOBARN INC. representative and no electronic, on-line internet or other electronic or automatic calculations of rates or transit times are applicable to any trade show or HAZMAT shipments. Under no circumstance will CARGOBARN INC. be responsible for preparation of any documents, permits or other special circumstances pertaining to HAZMAT shipments, nor will CARGOBARN INC. provide any input or suggestions pertaining to HAZMAT loads.
3.6 Descriptions of Packaging and Characteristics:
a) If a shipments or freight is stated to be “palletized,” unless other specific instruction or information is provided to CARGOBARN INC., such a representation or statement shall be deemed to represent that the freight is loaded on a pallet that is 48 inches X 40 inches and that such pallet(s) are built in a way that such pallet(s) can be placed on a semi-trailer by use of a forklift, pallet jack, or other equipment and that the freight is so arranged on such pallet(s) such that it does not overhang the edges of the pallet so that all floor space on a trailer may be efficiently used. The term “palletized” also represents, unless specified otherwise, that the pallet(s) are built in such a manner that they can easily be double-stacked, top loaded, or built to provide one (1) pallet space equal to the space between the floors of the trailer to not less than sixty-eight (68) inches, nor greater than ninety-eight (98) inches in height.
b) Shipments or freight that has a density of less than six (6) pounds per cubic foot and will occupy 750 cubic feet of trailer space or greater are not standard less-than-truckload (“LTL”) shipments. Rate quotes pertaining to any such shipments must be provided through an authorized CARGOBARN INC. representative and not through any on-line internet rate quote system or through any other electronic or automatically calculated means.
c) Shipments of freight exceeding 6,000 pounds in weight or that will occupy greater than twelve (12) feet of trailer floor space are or may be subject to volume, pallet or full-trailer load (“FTL”) rate.
3.7 Other Rate Terms and Conditions.
a) Quotes extended by CARGOBARN INC. greater than five (5) days prior to pick-up of a load of freight are no longer binding and are subject to change.
b) Less-than-truckload (“LTL”) loads tendered to CARGOBARN INC. are subject to all terms, conditions and provisions of the rules tariff(s), customer service guide(s), service guide(s), service publication(s), service terms and conditions, rules, or other similar terms or publications which seek to establish terms and provisions applicable to freight hauled by such carriers.
c) LTL rates are also subject to these Terms & Conditions, including, but not limited to, classifications of freight published by the National Motor Freight Transportation Association (“NMFTA”) that are in effect on the date that CARGOBARN INC. agrees to arrange transportation of freight (“NMFTA Terms and Conditions”) and such NMFTA Terms and Conditions are hereby incorporated by reference as though the same were fully set forth herein. A copy of the NMFTA Terms and Conditions in effect as of the date hereof are deemed to be appended to these Terms and Conditions. To the extent, if any, that these Terms and Conditions conflict with any of the NMFTA Terms and Conditions, these Terms and Conditions shall apply and prevail over conflicting terms and conditions contained in the NMFTA Terms and Conditions.
d) If an LTL shipment is not ready for pick-up at the appointed time, most carriers will not typically wait until the shipment is ready. Typically, the carrier will issue a charge for the shipment not being ready and will return on a different date and time as rescheduled. In circumstances where a carrier does wait until the subject shipment is ready to be loaded, typically additional detention charges are incurred. Customer agrees to pay CARGOBARN INC. for any and all additional charges, plus a reasonable mark-up, if a shipment is not ready to be loaded and hauled at the appointed time. Appointments for pick-up and/or deliveries by carriers typically are within a two-hour range.
e) Rates quoted or estimated for any international shipment do not include any duties, taxes, customs fees or other charges, assessments or fees that might be incurred in connection with such shipment. All such charges shall be paid by Customer, the shipper, consignee, beneficial owner of the freight, or any other party with an interest in the freight and all such parties shall be jointly and severally liable to defend, indemnify and hold CARGOBARN INC. harmless from any such charges.
f) In addition to any rates, fees or amounts charged to Customer by CARGOBARN INC., Customer shall also be liable for and responsible to pay any and permit fees, in-bond storage charges, sufferance, warehouse charges and all of fees, costs, assessments and charges pertaining to any in-bond shipments and Customer, the shipper, consignee, beneficial owner of the freight, or any other party with an interest in the freight shall be jointly and severally liable to defend, indemnify and hold CARGOBARN INC. harmless from any such charges.
Section 4 – CARGOBARN INC. Relationship with Carriers.
4.1 No Authority to Control the Means by which Carrier Performs Services. Customer acknowledges that CARGOBARN INC.’s role is simply to arrange for transportation of freight by a licensed motor carrier. Neither CARGOBARN INC., nor Customer has any right to control, nor will CARGOBARN INC. or Customer control, the means by or manner in which any carrier engaged by CARGOBARN INC. performs its functions in transporting and delivering the subject freight. The means and manner by which a carrier accomplishes the task of delivery the subject freight is in the carrier’s sole discretion. CARGOBARN INC. cannot and shall not exercise any control over the manner in which a carrier performs its services or a carrier’s operations, nor does CARGOBARN INC. retain any right to control or otherwise supervise a carrier or a carrier’s employees or other agents. A carrier engaged by CARGOBARN INC. shall be solely responsible for any and all management, control, governance and discipline of such carrier’s employees, agents, owner/operators, and equipment; and CARGOBARN INC. has no power or authority to hire or terminate the employment of any of a carrier’s employees or other agents. Even though CARGOBARN INC., Customer, shippers/consignors, consignees, or other persons or entities may from time-to-time provide a carrier with verbal or written instructions suggesting routes, types of equipment, methods of securing loads, methods of loading or unloading freight or other means of transporting and delivering the subject freight, such suggestions, if given, shall be for informational purposes only and the carrier shall retain the right to choose routes, times that the carrier will perform its services, employees, equipment to be used, methods of securing loads, methods of loading or unloading freight and all other means of transporting and delivering the freight. Even though a carrier may consider instructions, guidelines and/or other suggestions from CARGOBARN INC., Customer, shippers/consignors and/or consignees, the carrier shall remain ultimately responsible to choose and control the method of loading, unloading, and securing the load and transporting the load and will do so in a manner that the same may be loaded, transported, and unloaded safely without damaging the load or endangering the public or any person or entity.
4.2 Independent Contractor Relationship with Carriers. CARGOBARN INC.’s relationship to any carriers with whom it arranges to transport Customer’s freight is and shall at all times be that of an independent contractor and no facts, agreements or other considerations shall be construed to be inconsistent with that status. No term or provision of any agreement with a carrier or any act or omission of CARGOBARN INC. or a carrier shall be construed for any purpose to express or imply any joint venture, partnership, principal/agent, master/servant, fiduciary, employer/employee or other relationship between CARGOBARN INC. and a carrier, other than that of an independent contractor relationship. No employees or other agents of a carrier shall be construed under any circumstance to be the employees, servants, or agents of CARGOBARN INC., Customer, the shipper/consignor, the consignee, or any “bill to” party. Neither a carrier, nor any of its employees or agents, shall have any authority to act on behalf of CARGOBARN INC. or to alter in any manner any contractual or other relationship of CARGOBARN INC. with Customer, shippers/consignors, consignees, or any other person or entity. Neither CARGOBARN INC., nor any carrier are authorized to use the formal name, any business or trade name or any derivative thereof, nor any trademark or service mark of the other or of any other company with which either CARGOBARN INC. or a carrier may be affiliated. Any carrier that CARGOBARN INC. arranges to transport any of Customer’s freight shall bear all costs of and shall provide all labor, wages, payroll, equipment, fuel, maintenance, insurance, federal, state and local payroll taxes and any other taxes, unemployment insurance, pensions, social security payments, workers’ compensation insurance, and all other costs associated with transportation of the subject freight and performance of such carrier’s transportation services. CARGOBARN INC. shall not be liable for or responsible to pay any such costs. Neither CARGOBARN INC. nor any carrier will hold itself out to be anything but an independent contractor with respect to each other and Customer shall not construe or assert CARGOBARN INC. or any carriers to be anything but independent contractors with respect to each other.
Section 5 – Cargo Loss or Damage and Delay Claims.
5.1 CARGOBARN INC. has no liability for any Cargo Loss or Damage or Delay Claims CARGOBARN INC., acting as a broker, shall have no liability to Customer or to any shipper, consignee or any person or entity holding or claiming any interest in freight that CARGOBARN INC. arranges to be transported for any loss of or damage to any such freight; and, CARGOBARN INC. shall have no liability to any person or entity for any delay in delivery of such freight. Customer, for itself and any of its customers, vendors, shippers, consignors, receivers, consignees, others claiming a beneficial or other interest in any subject freight and any of their respective insurers, successors, and assigns, agrees to look solely to any carrier arranged by CARGOBARN INC. to transport any subject freight for recovery of any loss of or damage to such freight or delay in delivery of such freight and agrees to hold CARGOBARN INC. harmless with respect to any claims for loss of or damage to any freight tendered to CARGOBARN INC. and to hold CARGOBARN INC. harmless with respect to any claims for delay in delivery of any such freight. Customer, for itself and any of its customers, vendors, shippers, consignors, receivers, consignees, others claiming a beneficial or other interest in any subject freight, and any of their respective insurers, successors, and assigns, acknowledges and agrees that CARGOBARN INC. has not agreed (expressly, implicitly or otherwise) to be liable or responsible for loss of or damage to any subject freight and, Customer and any other persons or entities specifically acknowledge and agree that CARGOBARN INC. is not liable or responsible for the loss of or damage to any subject freight or for delay in delivery of the same. CARGOBARN INC. may, at CARGOBARN INC.’s sole option, assist Customer or others in pursuing claims for loss of or damage to freight or delay in delivery of freight with the carrier; but, CARGOBARN INC. is not obligated to do so and shall not be subject to any liability for doing so or otherwise with respect to any such claim. If CARGOBARN INC. does pay any amount to Customer or other interested party in connection with a cargo loss or damage or delay claim, CARGOBARN INC. shall be deemed to have been assigned and subrogated to all of Customer’s and/or such other party’s rights and interests in such claim.
5.2 Limitation of Liability for Any Loss, Damage or Delay Claim. Should any court or other tribunal find CARGOBARN INC. to be liable for the loss of or damage to any freight that CARGOBARN INC. arranges to be hauled despite the provisions of the foregoing section 5.1, then, in any such event or case or for whatever reason CARGOBARN INC. may somehow be held or found to be liable for any claim for loss of or damage to freight or for delay in delivery of freight, any such liability of CARGOBARN INC. shall be limited to the lesser of: a) an amount equal to $2.00 per pound of the item(s) of freight actually damaged up to a maximum of $20,000; b) a refund of the freight charges applicable to the specific load lost and/or damaged; or, c) the actual value of the damaged freight, unless: 1) a greater value has been declared and communicated in writing directly to CARGOBARN INC. (and not just to the carrier arranged by CARGOBARN INC.) reasonably in advance of pick-up of the subject freight (notification less than forty-eight (48) hours in advance of pick-up shall presumptively not be reasonably in advance); CARGOBARN INC.’s President has specifically agreed in writing to the declared value; 3) the rate for arranging for transportation of the load of freight has been increased accordingly; and, 4) such increased amount is actually paid to CARGOBARN INC. by Customer.
5.3 Freight Forwarder Operations. EL has authority to act as both a “broker” as defined in 49 U.S.C. § 13102(2) and as a “freight forwarder” as defined in 49 U.S.C. § 13102(8). Unless otherwise specified in writing with respect to a specific load, EL will be deemed to be operating as a “broker” and, thus, shall not be liable to Applicant for any claim for loss or damage to cargo. In the event of loss or damage to cargo, Applicant’s claim or remedy will be solely against the carrier whom EL arranged to transport the subject freight. While EL may assist Applicant in processing loss or damage claims, Applicant will not assert liability against EL. In the event that EL notifies Applicant in writing that it is acting as a “freight forwarder” or if EL is otherwise found to have been acting as a “freight forwarder”, then in such case, unless Applicant declares a higher value for cargo in writing to EL (additional liability coverage charges will apply to EL’s service rates), EL’s cargo liability is limited to $2.00 per pound per lost or damaged article, the manufacturer’s cost, or $20,000, whichever is less. (Any single claim for less than $100 will not be considered.) Regardless of the declared value of the cargo, EL’s liability for loss, damage, delay, misdelivery, or nondelivery, will not exceed the $2.00 per pound per lost or damaged article, manufacturer’s cost, cargo’s repair cost, depreciated value, or its replacement cost, or $20,000, whichever is less, unless there is a specific writing in which EL agrees to a greater amount of liability. Applicant should contact an insurance broker if Applicant desires insurance applicable to cargo that EL arranges to be transported. EL DOES NOT PROVIDE INSURANCE COVERAGE OF ANY KIND. EL does not guarantee service delivery times and is not liable for “loss of sales,” consequential or indirect damages associated to the loss, damage or delay of any shipment. This paragraph does not waive or otherwise impair EL’s rights and defenses with regard to whether EL is liable for cargo loss or damage. Notwithstanding any other term or conditions of the Agreement, carriers arranged by EL shall have no liability for temperature or altitude related damage to ice cream.
5.4 High Value Loads. Most carriers with which CARGOBARN INC. arranges to transport freight carry cargo loss and damage insurance in the amount of $100,000, subject to various exclusions, deductible levels, schedules of vehicles or other conditions or provisions that might nullify coverage or may not otherwise be within coverage. Should Customer offer, refer or tender freight to CARGOBARN INC. that is worth greater than $100,000, Customer shall give CARGOBARN INC. notice of such greater value and the value of such freight in writing reasonably in advance (preferably forty-eight (48) hours in advance) of the requested pick-up date. CARGOBARN INC. may, at its option, assist Customer in obtaining excess cargo insurance, shippers’ interest insurance, or other all risk insurance where the cargo can be insured and such insurance coverage could even be for amounts greater than $100,000. Such contracts of insurance are between the insurance company and Customer and CARGOBARN INC. is not a party to any such agreement. The terms of any such insurance contract or policy, including, but not limited to, any and all exclusions, conditions, etc., govern that relationship. If, notwithstanding these Terms and Conditions, CARGOBARN INC. is somehow found to be liable, its liability, if any, shall be limited as set forth in sections 5.2 and/or 5.3 hereof.
5.5 Time-Sensitive Freight. As set forth herein, CARGOBARN INC. shall not be liable for any claims for delay in delivery of freight. If Customer has freight that must be delivered in a time-sensitive manner, Customer shall notify CARGOBARN INC. in writing of such fact in advance of pick-up of such freight and shall set forth in such writing the types of damages it anticipates suffering for delay in delivery, along with an estimate of damages to be suffered should delivery of such freight be delayed. CARGOBARN INC. will endeavor to advise the carrier arranged to transport such freight of the time-sensitive nature of the freight; however, CARGOBARN INC. shall not be liable for any delay in delivery of such freight and Customer’s sole remedy, if any, shall lie with the carrier. Customer acknowledges and agrees that neither Customer, CARGOBARN INC., or any other party involved in the movement will place requirements upon a carrier or request that a carrier meet a pick-up or delivery schedule that will or may require a carrier or its driver(s) to violate any laws or regulations (including, but not limited to, any Federal Motor Carrier Safety Regulations (“FMSCRs”) relating to safety or which may require violation of any state, federal or local statute, rule or regulation pertaining to safety, including, but not limited to, those pertaining to hours of service; and, that all such requests and requirements for pick-up and delivery will enable a carrier to operate its business and transport such load in a safe and prudent manner and in strict and full compliance with all state, federal, and local statutes, rules, and regulations (including, but not limited to, FMSCRs). In no event shall CARGOBARN INC. be liable for any special, incidental, consequential or compensatory damages relating to any delay in delivery of a shipment. Additionally, if any failure or delay in pick-up or delivery of freight shall be the result of an occurrence or event that is outside of the control of CARGOBARN INC. and/or the carrier(s) that CARGOBARN INC. arranges to transport the freight, including, but not limited to, such causes as severe weather, fires, floods, natural disasters and catastrophes, highway accidents, roadway blockage, closures and/or re-routing, traffic congestion, fuel shortages, acts of God, war or enemy action, civil commotion, riots or insurrection, epidemics, re-routing, or other similar occurrences or event, neither CARGOBARN INC. or the carrier shall have any liability for such failure or delay in service.
5.6 HAZMAT Loads. Should Customer request that CARGOBARN INC. arrange for transportation of freight that constitutes hazardous materials, whether such materials meet the definition contained in 40 C.F.R. § 261.1 et seq. or other definitions or designations, Customer shall notify CARGOBARN INC. of the same; and, Customer shall comply with all applicable laws and regulations relating to the transportation of hazardous materials, including, but not limited to, those defined in 49 C.F.R. § 172.800, § 173 and § 397 et seq. Customer shall further defend, indemnify and hold CARGOBARN INC. harmless from any penalties or liability of any kind, including reasonable attorney fees, arising out of Customer’s failure to comply with applicable hazardous materials laws and regulations.
5.7 Canceled Loads. If Customer requests that CARGOBARN INC. arranges for a carrier to transport a load of freight and such load is subsequently canceled or delayed beyond the requested pick-up time and the carrier arranged by CARGOBARN INC. has sent or make plans to send a truck or equipment or has otherwise incurred expenses in connection with such load, Customer agrees to pay to CARGOBARN INC. the amount of costs and expenses incurred by such carrier, plus ten-percent (10%) of such amount.
5.7 Delay/Detention in Loading at Origin or Unloading at Destination. Carriers arranged by CARGOBARN INC. generally allow a certain amount of “free time” (typically two (2) hours) for loading of freight at origin and unloading of freight at the destination. Customer shall defend, indemnify and hold CARGOBARN INC. harmless for any amount of time in excess of the “free time” allowed by the carrier arranged by CARGOBARN INC. for which such carrier is detained for loading, unloading, or otherwise at the origin or destination.
Section 6 – Payment Terms
6.1 Payment Terms. CARGOBARN INC. shall invoice Customer and Customer shall pay CARGOBARN INC. for its services in arranging for the transportation of freight in accordance with the rates and charges agreed to by CARGOBARN INC. and Customer. Unless otherwise agreed to in writing, upon approval of Customer’s credit, all charges owing to CARGOBARN INC. are due to be paid within thirty (30) days of the invoice date, without any deduction or setoff. CARGOBARN INC. shall apply Customer’s payment to the invoice(s) specified on the remittance advice, if any. Otherwise CARGOBARN INC. may apply payments to such invoice(s) or other amounts owing from Customer as CARGOBARN INC. deems appropriate in its sole discretion. If any charges owing to CARGOBARN INC. are not paid by the due date, interest shall accrue on the amounts owing at the rate of 1.5% per month. Customer shall also be liable to pay CARGOBARN INC. for any and all costs incurred by CARGOBARN INC. in collecting the amounts owing, including, but not limited to, reasonable attorney fees.
6.2 CARGOBARN INC. Enforcement of Rights of Carrier. Should Customer fail to pay CARGOBARN INC. the full amount owing to CARGOBARN INC. within the time-period provided for herein and CARGOBARN INC. has paid the carrier(s) with which it arranged for transportation of Customer’s freight, CARGOBARN INC. shall be deemed to be subrogated to and to have received an assignment of all of the carrier’s rights under the bill of lading or other applicable documents or law to collect from any other potentially liable parties, including, but not limited to, any and all shippers, consignors, receivers, consignees, or other parties having a beneficial interest in the freight transported or the services provided. Despite the terms of any bill of lading issued by the carrier or shipper or adopted by the carrier, shipper or other parties as the bill of lading pertaining to a particular load of freight, Customer, as well as any shipper, consignor, receiver or consignee remain jointly and severally liable for payment of any and all freight charges and other charges owing to CARGOBARN INC., despite the signing of any Section 7 or other non-recourse provision, despite designation of the bill of lading as “prepaid” or “collect,” and despite any other language or provision which might purport to release any such party from liability for payment of monies owing for transportation of the freight or owing to CARGOBARN INC. for arranging for transportation of the freight. Additionally, CARGOBARN INC. shall have a lien on all shipments of Customer for all amounts owing to CARGOBARN INC. CARGOBARN INC. may instruct the carrier arranged to hold the shipment subject to such lien, with Customer being responsible and liable for any and all detention, demurrage or storage charges or the costs to dispose of a shipment through public or private auction or otherwise.
Section 7 – Insurance
7.1 Insurance obtained by CARGOBARN INC. Other than a broker’s security bond or trust fund in at least the minimum amount required by federal law, CARGOBARN INC. is not required to carry any insurance pertaining to the services CARGOBARN INC. provides hereunder. By way of information and not by way of requirement, however, CARGOBARN INC. generally carries and maintains the following insurance coverage in the amounts indicated:
a) Comprehensive General Liability Insurance $1,000,000;
Section 8 – Indemnification.
8.1 Indemnification of CARGOBARN INC. Customer shall defend, indemnify and hold CARGOBARN INC. harmless against any claims, actions, damages and causes of action arising out of or relating to Customer’s negligent or other tortious acts or omissions or arising out of or relating to Customer’s failure to fulfill any obligations it may have to CARGOBARN INC. hereunder or otherwise.
Section 9 – Independent, Non-Exclusive Relationship
9.1 Independent Contractor Relationship. The relationship between CARGOBARN INC. and Customer shall at all times be that of an independent contractor and nothing contained herein or otherwise shall be construed to be inconsistent with that status. No term or provision of this or any other agreement or any act or omission of either party shall be construed for any purpose to express or imply any joint venture, partnership, principal/agent, master/servant, fiduciary, employer/employee or other relationship between CARGOBARN INC. and Customer, other than that of an independent contractor relationship. No employees or other agents of Customer shall be construed under any circumstance to be the employees, servants, or agents of CARGOBARN INC. or any applicable carrier. Likewise, no employees or other agents of CARGOBARN INC. or any carrier arranged by CARGOBARN INC. shall be construed under any circumstance to be the employees, servants or agents of Customer, the shipper/consignor, the receiver/consignee, or any other party. Neither Customer, nor any of its employees or agents, shall have any authority to act on behalf of CARGOBARN INC. or to alter in any manner any contractual or other relationship of CARGOBARN INC. with its carriers, customers, shippers/consignors, receivers/consignees, vendors, or any other person or entity. Likewise, neither CARGOBARN INC., nor any of its employees or agents, shall have any authority to act on behalf of Customer or to alter in any manner any contractual or other relationship of Customer with its customers, carriers, shippers/consignors, receivers/consignees, vendors, or any other person or entity. Neither CARGOBARN INC., nor Customer, are authorized to use the formal name, any business or trade name or any derivative thereof, nor any trademark or service mark of the other party or of any other company with which either party may be affiliated, without express written permission to the contrary. Customer and CARGOBARN INC. shall each bear all of their respective costs of and shall provide all labor, wages, payroll, equipment, insurance, federal, state and local payroll taxes and any other taxes, unemployment insurance, pensions, social security payments, workers’ compensation insurance, and all other costs associated with their respective businesses and arrangement for and transportation of the subject freight and performance of their respective services. Neither CARGOBARN INC. nor Customer will hold itself out to be anything but an independent contractor with respect to the other, nor will CARGOBARN INC. or Customer assert that they maintain any relationship with the other that is different from that of an independent contractor.
9.2 Non-Exclusive Use. CARGOBARN INC. is not restricted from providing freight brokerage or other services to persons or entities different from Customer; and, subject to the provisions hereof relating to Customer tendering freight directly to carriers which CARGOBARN INC. has arranged to haul freight offered, tendered or referred from Customer, and except as otherwise provided for herein, Customer is not restricted from offering, tendering, or referring freight to other brokers, freight forwarders, other logistics providers or motor carriers different from CARGOBARN INC..
9.3 No Control or Right of Control by CARGOBARN INC. or Customer. Neither CARGOBARN INC. nor Customer has the right to control nor shall either exercise any control over the manner in which the other performs its services hereunder or carries on their respective operations. Neither CARGOBARN INC. nor Customer retains any right to control or otherwise supervise the other’s employees or other agents. Customer and CARGOBARN INC. shall each be solely responsible for any and all management, control, governance, discipline, of their respective employees and agents; and, neither has any power or authority to hire or terminate the employment of any of the other’s employees or other agents.
Section 10 – Confidentiality and Protection of Business Relationships
10.1 Covenant to Not Tender Freight Directly to Carrier Introduced by CARGOBARN INC. Customer recognizes that CARGOBARN INC. has spent substantial time, money and resources developing a reputation in the freight brokerage industry and developing business relationships with carriers through which it arranges transportation of freight of Customer and others and that CARGOBARN INC. is providing a valuable service to Customer in arranging for transportation of Customer’s freight. Therefore, as part of the consideration for CARGOBARN INC. arranging for the transportation of Customer’s freight, Customer agrees that for a period of twenty-four (24) months following the date of any load of freight for Customer that CARGOBARN INC. arranged to be transported by a particular carrier, that Customer will not offer, tender or refer freight directly to that particular carrier, unless during the twelve (12) month period immediately preceding the first load of freight of Customer that CARGOBARN INC. arranged to be hauled by that particular carrier, such carrier had hauled sufficient freight directly for Customer (and not arranged through CARGOBARN INC. or another broker or other party) to generate at least $30,000 of freight charges. Should Customer violate the provisions of this section, Customer agrees to pay CARGOBARN INC., as liquidated damages, an amount equal to twenty-percent (20%) of the gross amount that Customer has agreed to pay such carrier for transporting freight for Customer for a period of twenty-four (24) months following the date of the last load of Customer’s freight that CARGOBARN INC. arranged to be transported by that particular carrier.
10.2 Confidential Information. Customer further agrees that it shall protect and keep confidential any and all non-public, confidential, or proprietary information of CARGOBARN INC., including, but not limited to, the identity of CARGOBARN INC.’s carriers, carrier lists, freight and brokerage rates, pricing, freight volume requirements, or the like and that Customer shall not disclose the same, without the prior written approval of CARGOBARN INC.
Section 11 – Miscellaneous
11.1 Governing Law/Jurisdiction: Negotiations for the offering, tendering and/or referral of freight to CARGOBARN INC. are be deemed to have been conducted within the State of California. Accordingly, except to the extent (if any) that they are preempted by federal law, the laws of the State of California shall govern the construction and interpretation of these Terms and Conditions and the dealings of Customer with CARGOBARN INC. Customer expressly submits to the jurisdiction of the Courts of the State of California and the United States District Court for the District of California and agrees that jurisdiction and venue shall be proper in such Courts and Customer waives any claim or defense that such Courts will be an inconvenient forum.
11.2 Remedies. In addition to any other remedies that may be available to CARGOBARN INC. at law or in equity, all provisions of these Terms and Conditions may be specifically enforced, however, the failure of CARGOBARN INC. to promptly enforce such provisions shall not be construed to be a waiver of CARGOBARN INC.’s rights hereunder. In addition, Customer recognizes that the payment of damages hereunder may not fully compensate CARGOBARN INC. for Customer’s breach of some of the provisions of these Terms and Conditions and that CARGOBARN INC. will likely suffer irreparable harm from such a breach. Accordingly, Customer agrees that should it breach, violate, or threaten to breach or violate the provisions of these Terms and Conditions, that CARGOBARN INC. will be entitled to injunctive relief prohibiting Customer’s breach, violation or continued breach or violation without the need of CARGOBARN INC. having to post any bond in connection with such injunctive relief
11.3 Miscellaneous. These Terms and Conditions and any Load Confirmations issued to Customer by CARGOBARN INC. pertaining to a load for freight offered, referred or tendered to CARGOBARN INC. or other agreement or correspondence between CARGOBARN INC. and Customer constitute the entire agreement between the CARGOBARN INC. and Customer pertaining to CARGOBARN INC.’s arranging for the transportation of Customer’s freight and are intended to be a complete integration of terms and cannot be altered, except through a written agreement signed by the President of CARGOBARN INC.. No employee, agent, servant or other representative of CARGOBARN INC., other than the President of CARGOBARN INC., is authorized to amend, modify or alter in any way the provisions or applicability of these Terms and Conditions. No other prior or contemporaneous agreements exist between CARGOBARN INC. and Customer, except as set forth in these Terms and Conditions. If any term or provision hereof is held invalid or unenforceable by a court or tribunal of competent jurisdiction, such term or provision shall be deemed to be modified to be enforceable or, alternatively, shall be deemed to be severed here from, and shall not affect the remaining provisions hereof, which shall remain enforceable to the full extent allowed by law. The failure of either party to enforce a breach or waiver of any term, condition or provision hereof shall not be deemed to constitute a waiver of any subsequent failure or breach. These Terms and Conditions shall be binding upon and inure to the benefit of any successors and assigns of CARGOBARN INC. and/or Customer.
CARGOBARN INC., INC.
POLICY AND PROCEDURE PERTAINING TO SAFE TRANSPORTATION OF FOOD
The Sanitary Food Transportation Act of 2005 and the Food Safety Modernization Act (2011) (for convenience collectively referred to herein as “FSMA”) required and granted authority to the Food and Drug Administration (FDA) to published a final rule and regulations regarding the safe transportation of human and animal food to be consumed within the United States. Accordingly, on April 6, 2016 the FDA published such “Final Rule” which has been codified at 21 C.F.R § 1.900–1.934. For convenience, such regulations will be referred to herein as “the FSMA Rule.”
Except for “Non-covered Businesses” (defined in § 1.904 and which generally consist of shippers, receivers and carriers with less than $500,000 average annual revenue), the FSMA Rule became effective April 6, 2017 and generally applies to shippers, brokers, receivers, loaders, and carriers. See § 1.900. The FSMA Rule requires that all activities associated with food transportation that may affect the sanitary condition of food be conducted under conditions and controls necessary to prevent the food from becoming unsafe during transportation. See §§ 1.904 and 1.908(3). Food that is subject to the FSMA Rule consists of food that is either: a) subject to temperature control for safety purposes; or, b) not completely enclosed by a container.
Under the FSMA Rule, a “shipper” must develop a written procedure to ensure: 1) that vehicles and equipment are clean and sanitary, including, but not limited to those used in transporting food in bulk; and, 2) that food requiring adequate temperature controls to ensure safety is transported under such adequate temperature controls. See § 1.908(b) (3-5). Since the FSMA Rule defines “shippers” to include brokers, freight forwarders and others who arrange for transportation of food in the United States by carriers, CargoBarn Inc. has developed the following written policy and procedure to ensure safety of the food for which it arranges transportation, whether as a broker or, as may sometimes occur, as a freight forwarder. The FSMA Rule allows shippers (including brokers) to delegate by written agreement some or all of their obligations to carriers. See § 1.908(a)(1), (b) (3-5). If a shipper or broker delegates some or all of its obligations to a carrier, the carrier must develop written procedures, as required by the agreement. See § 1.908(e).
Scope of Written Policy and Procedure.
CargoBarn Inc.’ written policy and procedure applies to all loads of food that are subject to the FSMA Rule or that would be subject to the FSMA Rule if the applicable shipper(s), receiver(s), loader(s) and carrier(s) were subject to the FSMA Rule. Any words in italics will have the meaning as defined in the FSMA Rule at § 1.904.
CargoBarn Inc.’ General Procedures Relating to Sanitary Transport of Food
Since CargoBarn Inc. operates primarily as a freight broker it is not in close physical proximity to the actual freight and rarely, if ever, takes possession (constructive or otherwise) of the freight. Accordingly, CargoBarn Inc. is rarely, if ever, in a position to physically ensure the safe transportation of food in accordance with the FSMA Rule. Additionally, CargoBarn Inc. arranges for transportation of a wide variety of commodities that are subject to the FSMA Rule. Accordingly, CargoBarn Inc. is not in the primary position to designate the specific conditions under which each type of food or commodity is subject to the FSMA Rule should be transported and must rely on the instructions and conditions specified and provided by its shipping customers as to the conditions under which food subject to the FSMA Rule must be shipped in order to ensure safe transportation of the same. Those written procedures may include: a) practices for cleaning, sanitizing (if necessary), inspecting and maintaining vehicles and transportation equipment that the carrier provides for use in the transportation of food (See § 1.908(e)(6)(i)); b) instructions pertaining to effective measures to protect food from contamination by raw foods and nonfood items in the same load; c) to protect food transported in bulk vehicles or food not completely enclosed by container from contamination or cross-contamination during the transportation operations; and/or, d) instructions to ensure that food is transported under adequate temperature controls. See, § 1.908(3). Accordingly, CargoBarn Inc. will endeavor to provide the written instructions provided by the shipping customer to the carrier arranged to transport the food and will endeavor to assign the responsibilities to comply with such instructions to the carrier. The carrier, through its acceptance of the subject load, will agree to comply with such requirements and instructions. Any assignments or reassignments of transportation operations will be made to competent supervisory personnel, which for purposes of complying with the FSMA Rule and all other purposes will be conclusively deemed to include all drivers for carriers and all loaders or other dock workers for shippers or receivers.
Similarly, CargoBarn Inc. will rely upon carriers and receivers to inspect the food products. Thus, CargoBarn Inc. requires the following from the various parties and stakeholders that are involved with transportation human and/or animal food that is subject to the FSMA Rule:
CargoBarn Inc. requires that its shipping customers provide to it and to any applicable loaders written instructions pertaining to each of the following whenever CargoBarn Inc. is requested to arrange transportation of a load of freight the is subject to the FSMA Rule:
1. The sanitary conditions pertaining to vehicles and transportation equipment which must exist in order to prevent the food commodity to be transported from becoming unsafe, including, but not limited to, all necessary sanitary specifications for the carrier’s vehicle and transportation equipment to achieve this purpose, including, but limited to, any specific design specifications and necessary or desired cleaning procedures required for the type of food being transported; § 1.908(b)(1) and (3).
2. The operating temperature at which the subject food must be transported and/or maintained and, if necessary, the temperature at the precooling phase; § 1.908(b)(2) and (5) and 1.908(e)(1) through (5).
a) Shipping customers may not delegate to CargoBarn Inc. or the carrier the obligation to determine the adequate operating temperature. During transportation, the carrier will maintain the shipping customer’s designated operating temperature within variations controlled by manufacturer specifications for the vehicle. Notwithstanding anything in the shipping customer’s written procedures to the contrary, if the shipping customer’s written procedures contain temperature-variation requirements that conflict with the vehicle or transportation equipment manufacturer’s specifications, then the manufacturer’s specifications control. The carrier will provide manufacturer specifications to the shipping customer upon written request.
3. The method through which the shipping customer or the receiver requires that the operating temperature be monitored and maintained during the transportation of the subject food consistent with the specified operating temperature. See, 1.908(e)(2).
4. If the food is to be transported in a bulk vehicle, the shipping customer will so specify and will request that the carrier provides information as to: a) the previous cargo that was hauled in the bulk vehicle and instruction as to whether such condition would cause the food to be hauled to become unsafe; and, b) when and how the bulk vehicle or transportation equipment to be used was last cleaned and/or sanitized. 1.908(b)(4) and (5).
As noted above, CargoBarn Inc. will provide written instructions provided by the shipping customer to the carrier arranged to transport the food and will assign the responsibilities to comply with such instructions to the carrier. The carrier, through acceptance of the subject load, will agree to comply with such requirements and instructions.
Upon arrival of the carrier at the pickup location, the shipping customer or its agent and any loaders will:
1. Inspect and ensure compliance with the sanitary conditions required of the vehicle(s) and transportation equipment as applicable to the commodity being transported;
2. Confirm with the carrier the required operating temperature;
3. Confirm that the vehicle and other transportation equipment has been pre-cooled to the appropriate operating temperature;
4. Confirm that the vehicle and transportation equipment utilized by the carrier arranged by CargoBarn Inc. has the capabilities to demonstrate through the method requested by the shipping customer that the appropriate operating temperature will have been maintained during the time it is being transported;
5. Place any required seal on the vehicle, trailer or transportation equipment and instruct the carrier to not remove the seal; but, to have the receiver remove the seal.
6. If the food is to be transported in a bulk vehicle:
a) Ascertain from the carrier when and how the bulk vehicle was most recently cleaned;
b) Ascertain from the carrier the nature of the previous cargo transported in the bulk vehicle since the last appropriate cleaning.
Before loading food subject to the FSMA Rule onto a vehicle or into transportation equipment, the loader shall:
1. Determine (considering the specification provided by the shipping customer or other shipper) that the vehicle and any other transportation equipment is in appropriate sanitary condition for the safe transportation of the subject food; 1.908(c)(1); and
2) Verify (considering the specification provided by the shipping customer or other shipper) that any mechanically refrigerated container or cold storage compartment is adequately prepared for transportation of such food, including that the same has been precooled to the appropriate operating temperature and otherwise meets sanitary conditions for the safe transportation of the subject food. 1.908(c)(2).
By acceptance and/or agreeing to provide transportation or transportation operations for the subject load of food, the carrier arranged by CargoBarn Inc. agrees to be responsible for all sanitary conditions and temperature control requirements applicable to the subject load as specified in writing by the shipping customer or shipper, including, but not limited to, the following:
1. The carrier will ensure that the vehicle(s) and other transportation equipment meet the shipping customer’s specifications and are otherwise appropriate and maintained to prevent the food from becoming unsafe during the transportation operations. 1.908(e)(1)
2. Precool the vehicle, trailer or other transportation equipment to the appropriate operating temperature for transportation as specified by the shipping customer’s requirements. 1.908(e)(3)
3. Transport the food products maintaining the operating temperature specified by the shipping customer and monitoring the same in accordance with the method of demonstrating maintenance of such temperature as agreed with the shipping customer.
4. The carrier will not remove any seal(s) placed upon the vehicle, trailer or transportation equipment, except in the immediate presence of and being accompanied by authorized representatives of the receiver in doing so.
5. If a bulk vehicle is used in connection with transportation of the subject food products, the carrier will:
a) Provide information that identifies the previous cargo transported in the bulk vehicle and/or transportation equipment;
b) Provide information identifying the method and date of the most recent cleaning of the bulk vehicle and/or transportation equipment. 1.908(e)(4) and (5).
6. Upon arrival at each receiver, if requested by such receiver, provide the operating temperature specified by the shipping customer and, if requested by the shipper or the receiver, demonstrate that the carrier has maintained operating temperature conditions during the transportation operation consistent with the operating temperature specified by the shipping customer using the method of so demonstrating agreed to with the shipper. Such information should include, but is not limited to:
a) Measurements of the ambient temperature upon loading and unloading or time/temperature data taken or recorded during transportation of the shipment.
b) Determining the food’s temperature upon arrival;
c) Determining the ambient temperature of the vehicle; and/or
d) Determining the vehicle’s operating temperature § 1.908(e)(2)
7. In addition and in accordance with 1.908(e)(6), each carrier that CargoBarn Inc. arranges to transport food that is subject to the FSMA Rule will develop and implement a written procedure that:
a) Specifies practices for cleaning, sanitizing (if necessary), inspecting and maintaining vehicles, bulk vehicles (if applicable) and transportation equipment that the carrier provides for use in transporting of food in order to prevent food from becoming unsafe from being transported with such vehicles and transportation equipment;
b) Describes how the carrier will comply with the operating temperature requirements and the carrier will demonstrate that it has maintained appropriate operating temperature conditions consistent with those specified by the shipping customer during transportation operations pertaining to the subject food;
c) Describe how it will comply with the provisions for using bulk vehicles or other transportation equipment in order to comply with shipper requests to identify: i) previous cargo transported in the vehicle, bulk vehicle and transportation equipment; and, 2) the most recent cleaning of the vehicle, bulk vehicle and transportation equipment.
8. Carriers shall also provide adequate training to personnel engaged in transportation operations in order to provide an awareness of potential food safety problems that may occur during transportation of food, as well as training regarding basic sanitary transportation practices to address those potential problems and the responsibilities of carriers under the FSMA Rule. Such training must be provided upon hiring of such personnel and reasonably as needed thereafter. 1.910(a). Carriers shall also establish and maintain records documenting such training, which include at least: a) the name of the person trained; b) the date such training occurred; and c) the type of training provided. Such records will be retained for at least twelve (12) months beyond the date the person identified in such records stops performing the duties for which he/she was trained. §§ 1.910(b) and 1.912(c).
Upon arrival at the receiver(s), the receiver or its agents or any unloaders will:
1. If the food is subject to temperature control for safety, take steps to adequately assess that the food was not subject to significant temperature abuse, by takings such steps as:
a) Determining the food’s temperature upon arrival;
b) Determining the ambient temperature of the vehicle;
c) Determining the vehicle’s temperature setting; and
d) Conducting a sensory inspection of the food product (e.g. sight for any signs of temperature abuse, smell for off-odors, check for irregular density or condition).
2. Accompany the carrier in removing any seal placed on the vehicle, trailer or transportation equipment.
Possible Failure of Conditions
If any shipper, loader, receiver or carrier becomes aware of any indication of a possible material failure of temperature control or other conditions that may render the food unsafe during transportation, such food shall not be sold or otherwise distributed and such persons shall take appropriate actions in the circumstances, including, but not limited to, communication to other persons or entities involved in the transportation and transportation operations pertaining to such food that such food is not to be sold or otherwise distributed, unless a determination is made by a qualified individual that the temperature deviation or other materially failed condition did not render the food unsafe. See, § 1.908(6). Accordingly, if any shipper, loader, receiver or carrier becomes aware any indication of possible material failure of conditions that may render the food unsafe during transportation, they should contact CargoBarn Inc. at (559) 272-7272 and asking for the Cargo Claims Department.
Record Keeping Requirements
The FSMA Rule requires that certain records be maintained by the various parties and stake-holders as set forth in § 1.912. Accordingly, CargoBarn Inc. will maintain and requires that other parties maintain records pertaining to transportation of food subject to the FSMA Rule as follows:
CargoBarn Inc., Shippers and Customers
CargoBarn Inc. and all shippers and shipping customers shall maintain the following records in accordance with § 1.912(a) and (d):
1. Records demonstrating that they have and do provide sanitary condition and temperature control specifications to carriers as a regular part of their respective transportation operations. Such records will be retained for a period of at least twelve (12) months beyond termination of agreements with the carriers;
2. Written agreements and written procedures required by 1.908(b)(3) through (5). Such records will be retained for a period of twelve (12) months beyond use of such written agreements and procedures in their respective transportation operations;
3. Written agreements through which tasks pursuant to the FSMA Rule were assigned to others. Such records will be retained for twelve (12) months beyond termination of such agreements.
Carriers shall retain the following records in accordance with § 1.912(b) through (d):
1. Records regarding their written procedures pertaining to § 1.908(e)(1) through (5) as required by § 1.908(e)(6). Such records will be retained for a period of twelve (12) months beyond use of such procedures in their transportation operations.
2. Records regarding their training records as required by 1.910(b). Such records will be retained for a period of twelve (12) months beyond the time that the trained person stops performing the duties for which such person was trained to provide.
3. Written agreements through which tasks were assigned to others. Such records will be retained for twelve (12) months beyond termination of such agreements.
Records to be retained pursuant hereto may be maintained as originals, copies or electronically and must be made available to authorized individuals upon request.
Claims for Loss or Damage of Subject Food Products
The FDA makes clear in its responses to comments submitted in connection with the FSMA Rule that the Carmack Amendment, 49. U.S.C. 14706, exclusively governs claims of loss or damage to cargo. The failure to comply with provisions of FMSA or the FSMA Rule or a shipper or shipping customer’s written instructions, or the policies or procedures set forth herein do not alone establish liability on the part of any party for a cargo damage claim. Nor does any such failure to comply created any presumption that food is adulterated, unsafe, or damaged. See FDA Response 45, FSMA Rule, Federal Register Notice, 81 FR 20110-11. The scope of the FSMA Rule also does not include the bases on which a load may be rejected, and the disposition of and costs associated with the disposal of rejected loads of food. Id. The FDA does “not anticipate that [the FSMA Rule] will have a significant impact on the cargo claims process.” Id. at 20111. Thus, temperature variation and/or broken seals alone do not give rise to valid or allowed cargo claims. All parties should understand that a carrier would not necessarily be liable under the Carmack Amendment absent actual loss or damage to cargo occurring while in the carrier’s possession.
Questions or Comments
If a party has questions regarding these written procedures, such questions should be directed to CargoBarn Inc. Legal Department at (559) 272-7272.