Judge I. Leo Glasser
In a “free on board” (F.O.B.) transactionk Taylor & Fulton Packing sold 10 shipments of Florida tomatoes—valued at $118,748—to Marco International Foods. Marco did not pay. Both Taylor and Marco were licensed under the Perishable Agricultural Commodities Act (PACA). The court granted Taylor summary judgment in its action for contract breach and to enforce a PACA statutory trust. Taylor established, as a matter of law, that it met the five elements of such a trust’s existence as outlined in S. Katzman Produce Inc. v. Won. In rejecting Marco’s assertion that it was not liable because Taylor delivered damaged, non-conforming tomatoes, the court—despite noting that PACA did not repeal the Uniform Commercial Code or abrogate contracting parties’ rights and defenses under state law—concluded that because the transaction was F.O.B., Marco bore the risk of damage during transportation to New York. Marco did not present evidence countering a Taylor employee’s testimony that conforming tomatoes subject to a USDA “marketing order” were inspected at their point of shipment. Thus, Marco did not show the tomatoes were not in “suitable shipping condition” when placed on the truck in Florida.
