Canadian Grain Commission
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Spoilage and heating of stored agricultural products



Chapter 9 – Legal aspects

Anyone involved in the stored products business may someday be required to attend court as a plaintiff, a defendant, a witness, or an expert witness in a lawsuit concerning stored commodities. Attending court can be a frightening experience to the uninitiated. The purpose of this chapter is to provide some general background on the subject by describing procedures used before and during court and the types of cases involving stored products that might be encountered.

The following section is quoted largely from Sinkwich and Jamieson (1982) and to a lesser extent from Macdonald (1976), and relates to Canadian civil law. For a description of United States federal courts see Want Publishing Company (1984).

Law cases are referred to by the names of the plaintiff and the defendant, the date, and the law journal in which they appear. For example, in Holian v. U.G.G. (1980), 13 C.C.L.T. 269 Manitoba C.A., C.C.L.T. is the abbreviation for Canadian Cases on the Law of Torts, 13 and 269 refer to the volume number and the page number, and C.A. is the abbreviation for Court of Appeal. Other journal abbreviations used in this chapter are A.C. (Appeal Cases), A.C.W.S. (All Canada Weekly Summaries), O.L.R. (Ontario Law Reports), H.L. (House of Lords), Q.B. (Queen’s Bench), and So. 2d (Southern Reporter, 2d series).

Procedures

Many cases are negotiated and settled out of court by lawyers after either a pretrial hearing or an examination of discovery before a judge. During these proceedings the lawyers exchange relevant records and examinations of facts. If settlements are not reached at this stage, then the cases are normally heard in civil court.

During the trial the plaintiff first presents his or her case by presenting witnesses and evidence. Witnesses are only allowed to testify to matters of fact that they have witnessed. Expert witnesses, persons with special skill or knowledge of a particular science or trade, must first be qualified before the court as to their suitability. Once qualified, they are permitted to do one or more of the following: draw upon fact and express professional opinion, reach conclusions, respond to hypothetical questions, explain professional procedures to the Judge and/or jury (Byrd and Stults 1976). For the roles and rights of expert witnesses see Cook (1964), and for guidelines for effective testimony by expert witnesses see Brickey and Vazquez (1977). The defendant cross-examines each of the plaintiff’s witnesses immediately after the plaintiff has completed the direct examination. After the plaintiff has presented all his or her evidence, the defendant presents a case in the same way. Both parties then summarize their cases, beginning with the plaintiff. It is during this stage of the proceedings that legal argument, which involves looking at relevant precedent and distinguishing cases, occurs. The judge then makes a decision based on the applicable law and the facts as he or she finds them.

To succeed, the plaintiff must prove his or her version of the facts on the balance of probabilities (i.e., that it is more likely than not). As an aid in achieving this goal, the plaintiff may wish to make a careful cross-examination of witnesses and evidence presented by the defendant. Finally, the court must decide whether on the whole of the evidence on the balance of probabilities the plaintiff has satisfied the onus on him or her and has proven his or her case.

If the plaintiff is successful, judgment is made for the plaintiff, and the judge decides the appropriate award. Legal costs, including the cost of court time, may also be awarded to the successful party. The judgment can be appealed to the Court of Appeal and in certain instances to the Supreme Court of Canada. On appeal, arguments are usually based on questions of law, not of fact.

Diversity of litigation

An examination of the literature shows that storage problems resulting in litigation usually involve either spoilage and/or heating, insect infestation, animal health, and fires and/or explosions (Table 13). Legal cases may be complex, involving several countersuits. For example, in the event of a storage problem the owner of a silo may sue his or her insurance company, which, in turn, may countersue the elevator construction company, dust equipment manufacturer, and others. In addition, if human deaths are involved, families of the deceased may initiate further legal actions.

Table 13 – Types of storage problems resulting In law suits
Problem Location Likely cause
Spoilage and/or heating Silos
  • failure to maintain quality through faulty management (poor warehouse-keeping)
  • delivery of low-quality product into storage
  • ineffective oxygen-limitation
  • inadequate equipment performance, e.g., aeration fans
Ships
  • improper care during voyage
  • product in poor condition at time of delivery to ship
Insect infestation Ships
  • failure to control pests
Animal sickness and/or death Animal barns
  • feeds containing mycotoxins
Fire Silos
  • delivery of low-quality product
  • inadequate N2/CO2 gas protection
Bins
  • aeration of heating product
Elevators
  • welding repairs, friction
Explosion Silos
  • hot fused product igniting dust on entry
Structural collapse Silos
  • flowing grain

Instances of spoilage and/or heating, insect infestation, animal health, and fires and/or explosions may result in a number of quite different kinds of litigation, as seen from the following list:

(a) Prosecution for breach of statutory duties under the Canada Grain Act, and regulations made under that Federal Statute. Particularly noteworthy is s.86(c), which says “No operator of a licensed elevator shall... except under the regulation or an order of the Commission, receive into or discharge from the elevator any grain, grain product or screenings that is infested or contaminated or that may reasonably be regarded as infected or contaminated.” Any person or corporation infringing this section is liable to a fine and/or imprisonment, as set out in s.89(2) of the Act. Note that the Act may be violated, and punishment earned, even though there has been no “fault” or “blame,” or even negligence, on anyone’s part. If infested grain is discharged, the hapless discharger is liable. The law calls this rather severe approach “strict liability.” We shall encounter it again shortly.

(b) Bailment. Whenever one person stores grain belonging to another person, or takes possession of it for purposes of carriage or transportation, a bailment is said to have occurred. The person receiving the goods is called the bailee; the consignor is called the bailor. A bailee owes a duty of custodial care to the bailor, that is, a duty to take care of the goods and to handle them skillfully, especially perishable commodities, such as grain. If the duty is broken, the bailee (for example, the elevator operator) may be sued in contract, if the storage was a contractual one, for reward, or in tort (a non-contractual civil wrong, typically the tort of detinue or of negligence), if the bailment was a gratuitous undertaking. In either event, actions involving breach of duty of custodial care by a bailee have an important procedural peculiarity in both Canada and England (but not in the USA). Once the plaintiff (bailor) has proven that bailment occurred, and that the goods were in due course contaminated, damaged, destroyed, or lost, it is up to the defendant (bailee) to prove that the disaster did not occur as a result of negligence on the part of the bailee. If the bailee cannot prove that, then the case will be settled in favor of the bailor.

Examples of some bailment cases follow: Christensen and Kaufmann (1969) relate an American case — careless storage under a contractual bailment. During the 1950s in Cairo, Ill., 6600 t of winter wheat was locally harvested, transported by truck, and stored in a large bin. The weather during harvest was changeable, with intermittent showers. According to the warehouse manager, all the grain was at an average and uniform 13.2% M.C., although some truck loads received were at 14.0% M.C. Most of the grain was binned at 27-32°C. In December the grain began to heat and was transferred to prevent further spoilage and heating. When unloaded in early spring, the wheat was 40% germ-damaged and of Sample grade, resulting in a $242 000 (U.S.) loss to the warehouse manager.

In the resulting lawsuit, the warehouse manager maintained that he had exercised care and caution during storage of the grains and that the poor keeping quality was probably due to a late spring frost, affecting the crop before harvest. The spoilage and heating in the bulk, however, were due to growth of storage fungi on moist grains, that is, grains above 13.5% M.C., within the bulk. Because of poor management, the warehouse manager was deemed responsible for the loss, as he did not monitor the bulk for changes in moisture content or development of storage molds, nor did he check the accuracy of his moisture meter.

Another example, involving a bailment of carriage, is given by the same authors: in May 1962 a cargo of about 2500 t of bagged No.2 white corn was loaded onto a ship in New Orleans. After a voyage of 18 days through the Gulf of Mexico, Panama Canal, and Pacific Ocean the ship arrived at El Salvador, its destination. On arrival, much of the corn was spoiled and the remainder spoiled during subsequent warehouse storage, with a total loss of $200 000 (U.S.). In the resulting lawsuit, the question at issue was whether the corn had been in bad condition and prone to spoil when loaded on the ship or whether improper care during the voyage had resulted in the loss.

On investigation it was shown that the corn had been in good condition when shipped. The shipper had kept a loading sample of the corn, which after 2 years still had 80% germination, less than 2% damaged kernels, and was free from visible storage fungi. Corn samples obtained from bags unloaded in El Salvador, by comparison, had 0% germination, 20-40% damaged kernels, and were heavily invaded by storage fungi. Moreover, the kinds of storage fungi invading the surface-sterilized corn kernels indicated that the corn must have been exposed to 85-90% R.H. and a moderately high temperature for at least 2 weeks. The ship’s log showed that during the voyage the relative humidity of the air ranged from 85 to 90% and the temperature ranged from 27.0 to 29.5°C. As the ship had no forced ventilation system, ventilation was provided through the scoop ventilators, which were kept open except when it was raining. The bagged corn in the holds was thus exposed to a continual blast of warm moist air during the voyage. By exposing samples of corn of the same quality as the loading sample to 85-90% R.H. and 27-29.5°C for 18 days, it was possible to obtain corn in the same condition as that which arrived in El Salvador. Further, the same types of storage fungi were present. This was convincing evidence, and the case was settled in favor of the grain firm that had supplied the corn.

A Canadian case dealing with the alleged negligence of a bailee of grain is the Ontario case of Quintal & Lynch Ltd. v. Goderich Elevator Go. (1923), 54 O.L.R. 200: a decision of that province’s Court of Appeal. A total of 2100 t of No.1 feed-oats had been consigned to the defendant company for storage. Due to alleged careless storage, the oats became heated and tough. After an exhaustive review of the evidence, the Court concluded that the heating and deterioration had probably occurred after the defendant company had relinquished possession of the oats, and therefore it was not to blame for the spoilage. The defendant company’s bailees had discharged the burden of proof incumbent upon them, and they were exonerated.

(c) Tort of negligence. In a host of different situations, the tort of negligence may be invoked against those who (i) carelessly store grain so that it ultimately causes damage to other persons or to their property; (ii) carelessly conduct their grain-storage activities so that other persons are harmed incidentally (for example, by fires, explosions, the spread of contaminants or disease, or the escape of fumigants), or need to take costly precautionary measures against any of these perils; or (iii) carelessly manufacture buildings, structures, or machines designed for the storage or preservation of grain, with resultant damage to that grain.

Usually, a complainant under item (iii) would have a contract with the alleged negligent company which supplied or manufactured the equipment, and would sue that company for breach of contract rather than for negligence. These kinds of cases are discussed under Breach of contract.

Items (i) and (ii) are typical cases in the tort of negligence. Reported cases are rare, but if a person stores grain in such a way that it deteriorates, develops toxins, and eventually kills livestock or causes animal sickness when the grain is fed to them, that person is liable in contract, under the Sale of Goods Act, if the contaminated feed is sold to the stock owner directly (Schiefer and O’FerraIl 1981); or liable in the tort of negligence if the contaminated feed is sold to a dealer, from whom it is passed to the ultimate consumer. The leading cases in this context are the English cases of Kendall v. Lillico [1969] 2 A.C. 1, and Ashington Piggeries v. Christopher Hill [1972] A.C. 441, both of which are treated as authoritative by Canadian Courts.

One can imagine all kinds of cases: overheated grain that might cause a fire; unskillful storage that might result in an explosion which destroys nearby property of a neighbor; carelessly used or stored fumigant chemicals (see Holian v. U.G.G. (1980), 13 C.C.L.T. 269, Manitoba C.A. — lax storage of phostoxin tablets gave rise to $90 000 award!) that might cause injuries to persons in the vicinity; failure to keep disease or biological contaminants under control in one’s premises, causing catastrophic loss to neighbors (see Weller v. Foot and Mouth Disease Research Inst. [1969] 1 O.B. 569).

These situations may give rise to the tort of negligence, and perhaps, in some cases, to the tort of nuisance, too. In every case, the essential question would be — did the defendant exercise reasonable care, skill, and expertise in the storing of grain and related activities? If not, then the defendant would be liable. Expert witnesses may be called upon to testify as to the usual practice of those experienced in the particular field of endeavor. It would be rare indeed for a Court to castigate as negligent what is considered the usual practice of people experienced in a given field. Compliance with usual practice is therefore a potent, although not impregnable, safeguard against negligence liability.

(d) Torts of strict liability. Under the heading Tort of negligence, it was noted that negligence liability may arise when fires or explosions result from careless storage, or when pests escape from bins and infest bins belonging to a neighbor. In the latter case, the plaintiff (neighbor) may not even have to prove negligence on the part of the defendant, since the situation might well constitute a strict liability tort, under the Rylands v. Fletcher principle (Rylands v. Fletcher (1868), L.R. 3, H.L. 330), and the defendant, even if personally blameless, would be required to pay for all damages resulting from the infestation.

(e) Statutory duties and civil liability. Legal scholars used to think that if one broke a Statutory duty, for example the Statutory duty under s.86(c) of the Canada Grain Act, considered earlier, one was automatically guilty of a punishable offence, and liable for damages to anyone whose interests suffered as a result. That disturbing thought was recently disposed of by the Supreme Court of Canada in Her Majesty The Queen v. Saskatchewan Wheat Pool (1983), 23 C.C.L.T. 121.

The Canadian Wheat Board, as agent for the Crown, directed that a cargo of wheat be shipped on board the MV Frankcliffe Hall. The wheat had been stored in the Saskatchewan Wheat Pool’s terminal elevators at Thunder Bay, Ont. After the wheat had been loaded and the ship had sailed, it was discovered that part of the grain was infested with larvae of the rusty grain beetle. The Canadian Wheat Board had to unload and fumigate the ship’s holds, at a cost of $98 261.55. The Board sought to recover the sum, founding its action upon the Canada Grain Act, s.86(c), which prohibits the delivery of infested grain out of a grain elevator. At trial before the Federal Court, it was held that the Statutory duty placed an absolute duty upon the defendants, the breach of which gave rise to a civil liability on their part, notwithstanding the absence of any allegation or clear evidence of negligence. Evidence of reasonable care on the defendants’ part was simply no defence. The defendants appealed successfully to the Federal Court of Appeal, which held that the Canada Grain Act was a statute designed for the general regulation of the grain industry, and that it was not designed to provide any particular class of persons, like the plaintiff, with any civil cause of action. The Board brought this further appeal to the Supreme Court of Canada, urging once more that a civil right of action was given to it by virtue of the breach of the statute. Subsequently, the appeal was dismissed and the Board’s action was rejected by the Supreme Court.

The Supreme Court ruled that the breach of a statute does not automatically, in and of itself, give rise to civil liability (that is, an obligation to pay compensatory damages for resultant harm or loss), if all the statute does is provide for a minor fine or some other punitive measure. If the statute itself ordains a civil remedy for breach of the duties it sets out, well and good; otherwise, breach of the statute’s terms is simply evidence, admissible in court but not necessarily conclusive, that there has been civilly actionable negligence, that is, a departure from the standards of care or skill that a reasonable person in the defendants’ position might have been expected to show.

(f) Contractual actions and the Sale of Goods Act. Whenever a person sells goods to another, whether the goods purchased are specific (for example, 15 t of oats in an elevator at Silver Plains), or generic (for example, 12 t of No. 1 feed oats), the liability of the seller for the quality of the goods delivered is governed by the law of contract, a complex body of rules long since codified, so far as such contracts of sale are concerned, by the Sales of Goods Act. This statute, with only minor local variations, exists in essentially the same form across Canada and throughout the Commonwealth. Its principal importance for present purposes is this. It is open to those who buy and sell stored agricultural commodities to agree upon any terms they choose, as to the quality of the merchandise. But to a large extent, the contracting parties may elect to leave the details to be filled in by the statute, the Sale of Goods Act, itself, providing as it does for a series of “implied warranties or conditions” on the part of a seller — that is, promises which a seller will be “deemed” to have made to the buyer, whether they were expressly spelled out or not. The implied promises are as follows:

  • That the goods correspond to the description agreed upon;
  • That the goods are of “merchantable quality” (that is, however defective or poor in quality, they are at least capable of finding a market somewhere, as goods of the same description as that used in the sale);
  • The goods are fit for any specific purpose (for example, feeding dairy cattle) made known by the buyer to the seller at or before the time of the sale; and
  • (where applicable) that the goods correspond in quality to any sample furnished by the seller to the prospective buyer.

It is obvious that all or any of these conditions, or implied promises, may be broken in situations where grain or produce has deteriorated or become contaminated due to unskillful storage. There have been many instances where expert witnesses have been called to testify to the propriety, or otherwise, of storage procedures, and the seriousness of the resultant degradation of the product. One common context for such litigation is that class of case where the defective feed-product bought by the plaintiff has caused animal sickness or injury to livestock, due to the presence of mycotoxins.

Actions involving mycotoxins

Some suits have been settled on the basis of the amount(s) of mycotoxin(s) present in the suspect feed sufficient to have caused the symptoms observed in the affected animals. Other claims, however, have been based on inadequate or misleading evidence, such as laboratory tests showing the presence of potentially toxigenic molds in the suspect feed. Such evidence has no scientific validity, but in the hands of a good attorney it may sway a jury (Mirocha and Christensen 1982). Many aspects of mycotoxin identification, occurrence, development on different substrates, and effects on animals at subclinical dosages are insufficiently known. Another area of concern is obtaining meaningful samples for mycotoxin analysis. Because of these scientific technical difficulties, one or more expert witnesses, sometimes with opposing views, may be involved in lawsuits (MarshaIl 1983). The following example, which occurred in a Canadian prairie province (Schiefer and O’FerraIl1981), illustrates the complicated nature of lawsuits involving animal sickness and mycotoxins.

The operator of a swine operation with 150 sows and 600 feeder pigs signed a contract with a feed company for repeated bulk delivery of several types of pellets consisting of 75% grain and the balance various protein supplements and mineral and vitamin mixes and premixes. Soon after delivery of pig grower pellets on 5 February 1976, vomiting and diarrhea were observed in all feeder pigs. To overcome the problem of enteritis, medication was added to the 10 February ration and the symptoms disappeared but reappeared after reintroduction of the non-medicated ration in March. Later, swollen vulvas and swollen mammary glands were observed in sows and pregnant gilts, and there was an increase in incidence of abortions and a decrease in litter size. The feed company halted further shipments and eventually sued the operator for nonpayment of feed received since February. The operator counterclaimed for losses incurred as a result of the defective feed. A number of analytical tests for mycotoxins were performed on the feed and animal tissues but were negative and the cause was never clearly established.

In the subsequent law suit the operator, supported by statements from two veterinarians, contended that the feed delivered in February and March was the initial cause of the problem. One veterinarian diagnosed hyperestrogenism in the breeding animals and suspected that “the cause was nutritional, possibly mycotoxins.” His recommendation to change to other feed corrected the situation temporarily until the operator started to feed the suspicious feed again.

The feed company pointed out that none of the various samples taken had shown any evidence of presence of mycotoxins during the course of laboratory examination, that all its feed grains were purchased from areas known to have had very little rainfall before or during harvest, and that the grains originated from various sources within the area. It was argued that if a mycotoxin was involved at all, the production of mycotoxins may have started on the farm in improperly designed storage or transport facilities. Considerable clumping of wet and moldy feed due to rain entering the auger boot had been observed on visits to the farm.

The court was of the opinion that the problems on the farm started at the time of the feed deliveries of 5 and 10 February, and that all problems, both in feeder pigs and in sows, were most likely related to this feed. There appeared to be little doubt as to the diagnosis of hyperestrogenism, although no nutritional cause was found. The judge noted that it was not possible to say, with any certainty, how the mycotoxins, if any, had developed and ruled that the feed company would have to pay for the costs of the two unwholesome feed deliveries of 5 and 10 February.

Schiefer and O’Ferrall (1981) reviewed the veterinary, toxico-analytical, and legal aspects of the case. Regarding veterinary aspects they speculated that, in the absence of mycotoxins, a viral infection caused enteritis in the feeder barn and that the infection moved on to the sow barn to cause interuterine fetal death, reduced litter size, and infertility with a high number of sows recycling. Regarding toxico-analytical aspects, several shortcomings were apparent. The only samples collected by deep sampling at various sites were taken on 4 August, about 4 months after the initial problem arose. Also, the sensitivity of laboratory tests performed for the mycotoxin zearalerone left much to be desired. Regarding legal aspects, after the operator counterclaimed under the Sale of Goods legislation for the losses incurred as a result of the defective feed, the feed company was put in the position of having to defend its feed, that is, having to prove certain facts in order to succeed. However, the triers of fact in this case, judge or judge and jury, bound and determined to find a cause, found the feed was the most likely cause of the problem and that therefore, on balance of probabilities, the feed was defective. The swine operator succeeded. He was not required to pay for the defective feed and in addition he recovered losses for damages incurred.

The court’s decision in favor of the operator, however, may have been a misapplication of the legal rule governing the standard of proof in civil cases. Since most cases of hyperestrogenism in sows are not satisfactorily explained, the moldy feed was equally likely to be the cause of the problem.

Schiefer and O’Ferrall (1981) make these important conclusions and recommendations:

  • perform tests for mycotoxins on unprocessed grain or on the final pelleted or crumbled product on a regular basis to ensure the quality of their product.
  • Veterinarians, feed company representatives, and other people involved should ensure that feed samples are taken properly, identified unmistakably, and submitted to reliable analytical laboratories.
  • Any disease outbreak needs to be thoroughly investigated from various viewpoints.
  • Feed testing should be done by recognized laboratories, using methods with detection limits low enough to show that mycotoxins are not present at concentrations considered harmful, and confirmation of identity by chemical methods must be performed by competent analysts.
  • Veterinarians advising feed companies should be aware of the disadvantage of not being in a position to contradict the evidence of livestock owners who will likely testify that they never had any problems until they started feeding the feed received from the company. They must also act quickly to gather available evidence and conduct necessary tests.
  • Veterinarians advising the farmer should be aware of the dependency upon accurate descriptions by the producer and should gather all available evidence.
  • Legal action should require quantitative demonstration of a known toxin at a concentration that is consistent with the disease condition observed (Pier et al. 1980).

(g) Contractual liability. A defendant, whether sued in the tort of negligence, previously discussed, or in the present contractual phenomenon of Sale of Goods Act liability, will often depend on the doctrine of Privity of Contract. This says that one can only sue or be sued in contract (including the Sale of Goods Act) if one is in a direct contractual relationship with one’s opponent. Thus, if a buyer received, say, a defective storage tank from an independent regional distributor, contractor, or retailer, the buyer could sue that person or company in contract but not the manufacturer, since the buyer was not dealing directly with the manufacturer. The buyer could sue the manufacturer, if at all, only in the tort of negligence.

Several illustrations might be of interest at this point. A case of contractual liability -note the direct dealings between the parties — arose in a British Columbia case arising — as so many actions do, both in contract and in tort of negligence — out of fires or explosions allegedly due to careless storage practices. In this case, however, the plaintiff’s contract action was unsuccessful. The case was Cargill Grain Ltd. v. Neptune Bulk Terminals (1984), 25 A.C. W.S. 244, a decision of the distinguished British Columbia Court of Appeal.

Wheat bran pellets owned by the grain company were stored under contract in a warehouse. The contract with the warehouse company was for storage only, making no provision for inspection or circulation. Some months after delivery, the pellets began to heat. The grain company was warned, in writing, that the pellets were damp and warm but no reply was received; subsequently, a fire occurred due to self-ignition of the damp pellets. During the process of moving the pellets they were found to be infested with insects. The warehouse company had the facilities fumigated twice, the second fumigation also involving partial dismantling of the building to get at crevices. The trial judge found that any loss suffered by the grain company was due to its delivery of defective goods, that the warehouse company was sufficiently diligent in the care of its goods, and that the grain company was negligent in delivering defective goods and thus liable to the warehouse company.

In the appeal, it was judged the trial judge had erred in stating that the Warehouse Receipt Act (British Columbia) did not apply if defective goods were delivered, but that he did not err in finding the warehouse company had met the standard of care required by the Act, considering the contractual background. Based on his finding that the pellets became infested while in the possession of the grain company, the trial judge was correct that the grain company breached duty to test grain cars for infestation. It was decided that the warehouse company was entitled to be compensated for the full loss by the grain company, and the appeal was dismissed.

In a Louisiana case, Pellets Inc. v. Millers Mutual Fire Insurance Co. (1971), 241 So. 2d 550 Louisiana C.A., contractual liability was likewise in issue, this time because of inadequately controlled atmosphere protection. In 1967 a Louisiana feed company that produces bermuda grass pellets signed a contract with a contractor to install equipment, including a generator to provide oxygen-free gas at its plant. The pellets were stored in four 15 x 21-m storage tanks labeled A-D into which the gas was piped to produce a controlled atmosphere necessary to preserve pellet vitamin content and to reduce the possibility of fire by self-ignition. In early December 1968, a fire occurred in tank C. The insurance company paid for the loss incurred, then canceled its insurance coverage. In late December 1968 a fire allegedly occurred in tank A but the insurance company refused to pay for any losses incurred on the grounds that no fire was visible on 2 January 1969, the date the policy was canceled. The feed company then sued the insurance company for losses incurred. Several parties were made third party defendants, including the contractor. At the trial the verdict was in favor of the feed company, but the third party demand against the contractor was rejected. This verdict was appealed by the feed company.

At the appeal hearing before a jury, it was determined that on 6 January 1969 the temperature at 3.7 — 4.6 m from the top of tank A was 107°C. It was also determined that on 27 January the first actual flame, or glow, was noted from pellets discharged from a valve near the bottom of the tank, which was then less than half full. To empty the tank faster, a hole was cut in the bottom and a large pile of glowing embers emerged. From this and other evidence it was determined that an undisputed fire occurred in tank A on 27 January 1969, that the policy had not been legally and effectively cancelled on 2 January 1969, and that the insurance company was liable for the damage caused by the fire.

A second part of the appeal dealt with a third party demand by the insurance company against the contractor for negligence in the manner in which it constructed and designed tank A. It was claimed that the contractor had failed to properly vent the tank, apply pressure release valves, make the pellet conveyors gas tight, properly pipe oxygen-free gas into tanks at more than one point, and install flow meters and inspection cocks. The main thrust of the insurance company's argument was that because the gas system was improperly connected to the storage tanks, condensation occurred, resulting in oxygen and water getting into the gas system. The court rejected the demands against the contractor because equipment for use in conjunction with the storage tanks was to be installed by the contractor in accordance with drawings to be furnished and approved by the feed company. The contract did not require the contractor to do any design or engineering work.

Where damages sustained by a plaintiff have, in truth, been caused by the negligent design or manufacture of equipment or of a storage facility, and such equipment or facility, with its inherent defects, has been acquired not directly from the manufacturer but from some hapless dealer, the plaintiff can proceed against the manufacturer, ordinarily only in tort, typically the tort of negligence.

The foregoing discussion outlines and illustrates most of the types of litigation in which anyone handling stored agricultural products might anticipate becoming involved in, whether as a party or as an expert witness. It also illustrates, incidentally, most of the grain-storage calamities, mishaps, and types of mismanagement that may give rise to such litigation. But these illustrations are not exhaustive. One particularly hard-to-categorize case, decided by Lord Denning and his English Court of Appeal in 1974, is known to lawyers as The Tres Flares [1974], 1 O.B. 264. A ship was chartered to load a cargo of maize (corn) at Varna, Bulgaria and take it to Famagusta, Cyprus. The ship arrived at Varna at 5:00 hours on Sunday, 22 November 1970. No berth was available, so it was anchored in the roads. At 10:00 hours the Master of the ship gave notice of readiness that the ship was ready to receive a complete cargo of corn in accordance with the charter. On Monday, 23 November 1970, the charterers had the cargo of 6500 t of corn ready for loading in the port of Varna. The ship was still in the roads and because of heavy weather the inspectors could not get out and inspect it until Friday, 27 November 1970, at which time they certified that there were pests in the cargo spaces and ordered a fumigation before loading. The fumigation took 4.5 hours on Monday, 30 November 1970, and on 1 December 1970, the charterers accepted the notice of readiness. No berth was available for the ship until 7 December 1970, when loading commenced; loading was completed on 13 December 1970.

The ship’s owners subsequently claimed for demurrage (a charge for the detention of a vessel beyond the time agreed upon) incurred while the ship was in the roads. The owners claimed lay time began at 14:00 hours on Monday, 23 November, whereas the charterers said it began on Tuesday, 1 December 1970. At the trial, the verdict was in favor of the charterers. The subsequent appeal by the owners was dismissed for the following reasons:

  • The charter had a precondition to the validity of notice of readiness to load, which was not fulfilled until fumigation had been completed on 30 November 1970.
  • When the Master of the ship gave notice of readiness, the ship should have been ready for loading whenever the charterers’ instructions were given. Since there were pests in the holds of the ship, which made it unready to receive cargo until fumigation had been completed, lay time commenced at 14:00 hours on 1 December 1970.

It is not known what the pests were in this instance, but although the case itself is not easy to categorize from a legal viewpoint, it is another situation where the failure to secure stored grain against infestation by pests gave rise to exceedingly expensive litigation. One can neither catalogue nor predict exhaustively the range of situations where competency in grain-storage may be called into question by the law.