Ayala obtained a ruling granting damages, interest, and cost for its client, a Peruvian company, in a dispute against a California business for not paying for shipments of almost 5000 pounds of fresh asparagus.
The Complaint alleged that the failure to pay, under the excuse that the product was damaged, was a breach of contract and that it violated section 2 of the Perishable and Agricultural Commodities Act (PACA) (7 U.S.C. §499b).
The US Department of Agriculture Marketing Service[1] (the mandatory forum for the dispute before it could go to the courts) held that the Respondent violated 7 U.S.C. §499b when it failed to pay the Complainant’s first invoice, unilaterally setting off in its favor the payments due on a second shipment.
The USDA held that under the agreement of the parties, Complainant fulfilled its duties to deliver the shipments at the FCA[2] designated location and that damages to the shipments, if any, where the responsibility of the respondent. Further, the USDA held that the Respondent did not clearly and unequivocally reject the shipment and that “failure to reject in reasonable time” is an act of acceptance pursuant to 7 U.S.C. §46.2(dd)(3).
Overall, Ayala obtained for its client in this case nearly $100,000 between damages, fees and cost.
For more information regarding our commercial litigation practice email Eduardo Ayala at eayala@ayalalawpa.com or call 305-570-2208.
(Florida Bar disclaimer: results may not be typical. You may not have as beneficial a result)
[1] USDA
[2] The “free carrier” term means that the seller delivers the goods to the carrier or another person nominated by the buyer at the seller’s premises or another named place, and the risk of loss or damage passes to the buyer upon delivery at that location. See https://www.incotermsexplained.com/the-incoterms-rules/incoterms-2010-rules/ (accessed on December 22, 2017).
