Who is responsible for shipping loss?

glend (Glen) · #1 01-12-2020, 02:07 PM

This is not a hypothetical example, but rather a real problem.

New telescope, purchased from an Australian retailer operating a registered business. Telescope was fully paid for in advance.
Retailer shipped the telescope to the buyer, using a carrier of the retailers choice, and the buyer was not consulted in that decision..
Telescope parcel was shown on the carrier company's tracking (briefly) still in the retailers same capital city in transit.
Tracking stopped within two hour of starting.
One week has elapsed with no reappearance on the tracking system.
Attempts to trace the shipment by the buyer directly engaging with the carrier have been fruitless and frustrating.
Normal transit time to destination by most carriers would be two days.
Buyer requested the retailer to engage with the carrier to track down the telescope, retailer forwards the request to his carrier agent (Pack and Send). Nothing heard back from either Retailer or Pack and Send after a business day passed.
Questions sent to the retailer regarding insurance have gone unanswered.

Questions:

Who is currently responsible for the telescope? Reminder that the buyer has never taken ownership.
What liabilities apply to whom, in this situation?
What remedy is available to the buyer?

jahnpahwa (JP) · #2 01-12-2020, 02:40 PM

Hi Glen,

I'm not an expert here, but just googled Australian consumer law and found these

https://www.consumer.vic.gov.au/prod...ged-in-transit
In Vic it seems pretty clear that they would need to sort it out, and if they can't, you're entitled to a refund

https://www.accc.gov.au/consumers/sa...ducts-services
The federal body seems to have the same sort of take on it. There is a link in this one to the consumer protection agency, and they might be able to help chase things up. My initial thought is that most retailers would be pretty keen to listen to these guys if they come knocking.

As a lot of mates have told me in the past, documenting everything helps, and it sounds like youre doing that

Good luck with it!

glend (Glen) · #3 01-12-2020, 05:26 PM

Ok thanks.
The courier company, this afternoon, advised me they would only talk to Pack and Send now, as they are their corporate customer. I rang the retailer and had a long chat. I am satisfied that the retailer recognises their responsibility and was advised the shipment was insured and would be replaced with a new one if it is actually lost. So now all the time I spent trying to get information and tracking from the courier is wasted, they have cut me off. So Pack and Send are liaising with the courier to identify the scope shipping box, dimensions, markings, etc, and they will attempt to find it in the vast network. The supposition is that it is simply sitting somewhere and they will find it.
So I am still in the dark.

Outcast (Carlton) · #4 01-12-2020, 05:34 PM

Quote:

Originally Posted by glend

Ok thanks.
The courier company, this afternoon, advised me they would only talk to Pack and Send now, as they are their corporate customer. I rang the retailer and had a long chat. I am satisfied that the retailer recognises their responsibility and was advised the shipment was insured and would be replaced with a new one if it is actually lost. So now all the time I spent trying to get information and tracking from the courier is wasted, they have cut me off. So Pack and Send are liaising with the courier to identify the scope shipping box, dimensions, markings, etc, and they will attempt to find it in the vast network. The supposition is that it is simply sitting somewhere and they will find it.
So I am still in the dark.

Did the retailer give you any indication of a time frame in which they would consider the item lost?

I think it would be a fair question to ask mate if you haven't already. They've got your money, you haven't got your product & it was insured... you shouldn't IMHO have to just sit around in the dark wondering at what point it will be declared lost...

gary · #5 01-12-2020, 05:37 PM

As best as I am aware, in all states in Australia, once you buy it, the risk
is transferred to the buyer even if it has not been delivered by the carrier.

There is the notion in law of what are called Common Carriers and
Private Carriers.

There are test cases for whether a carrier is a Common Carrier or a Private
Carrier but as a rule of thumb, one of those private carrier firms will
most likely pass the test case of not being a Common Carrier and
there will be a Private Carrier.

The distinction is that Common Carriers have more onerous obligations
under law.

A Private Carrier is obligated under whatever terms there are in its
contract and most of the time those fine print terms and conditions will
tend to limit its liability for loss, damage or delay.

Hence most of them offer some sort of optional insurance coverage.

Having said that, Private Carriers have a responsibility to take
reasonable care for the safety of the goods they are transporting and
to take reasonable care to deliver those goods to their destination
and then might still be some compensation under law.

I'm not a lawyer but the receiver's best best is to hope the goods turn up.
Anecdotally if the goods have gone off the radar, a day or two is not very long right now.
Even at an international level, FedEx announced yesterday suspension of its Economy Service from
Asia/Pacific to Europe and these guys have their own fleet of wide bodied aircraft.
Here by comparison we are talking about it coming down perhaps to some guy with a van
whose wife had a baby and everything is still in the van.

In the world of international import/export there are what are called
Incoterms which are the set of rules exporters and importers agree upon
for payment and shipment of goods. Hence when you see terms such
as FOB for Free On Board, which means that once the goods are loaded
by the exporter onto the ship or plane, the rest of the responsibility is
the importers, including if the ship goes down at sea.

glend (Glen) · #6 01-12-2020, 05:40 PM

Quote:

Originally Posted by Outcast

Did the retailer give you any indication of a time frame in which they would consider the item lost?

I think it would be a fair question to ask mate if you haven't already. They've got your money, you haven't got your product & it was insured... you shouldn't IMHO have to just sit around in the dark wondering at what point it will be declared lost...

Carlton, No, the retailer did not indicate the time frame for replacement. I gathered that Pack and Send need to go through their tracing process and supply all the details to the courier, then they search for it (which I believe is underway, but have no way of knowing anything now). In the current pre-christmas and Post Black Friday shipping frenzy, it is an unknown how long it might take to locate.

glend (Glen) · #7 01-12-2020, 05:46 PM

Quote:

Originally Posted by gary

As best as I am aware, in all states in Australia, once you buy it, the risk
is transferred to the buyer even if it has not been delivered by the carrier.

There is the notion in law of what are called Common Carriers and
Private Carriers.

There are test cases for whether a carrier is a Common Carrier or a Private
Carrier but as a rule of thumb, one of those private carrier firms will
most likely pass the test case of not being a Common Carrier and
there will be a Private Carrier.

The distinction is that Common Carriers have more onerous obligations
under law.

A Private Carrier is obligated under whatever terms there are in its
contract and most of the time those fine print terms and conditions will
tend to limit its liability for loss, damage or delay.

Hence most of them offer some sort of optional insurance coverage.

Having said that, Private Carriers have a responsibility to take
reasonable care for the safety of the goods they are transporting and
to take reasonable care to deliver those goods to their destination
and then might still be some compensation under law.

I'm not a lawyer but the receiver's best best is to hope the goods turn up.

In the world of international import/export there are what are called
Incoterms which are the set of rules exporters and importers agree upon
for payment and shipment of goods. Hence when you see terms such
as FOB for Free On Board, which means that once the goods are loaded
by the exporter onto the ship or plane, the rest of the responsibility is
the importers, including if the ship goes down at sea.

Gary, I am now satisfied that the retailer accepts responsibility ( and had taken out shipping insurance in advance). My reading on the Australian Ombudsmen website seems to support that the liability rests with the seller until such time as goods are delivered into buyers hands. If for example it was delivered with obvious external damage, I would be able to reject delivery and have it returned to sender for them to remedy.

JA · #8 01-12-2020, 06:15 PM

Hi Glen,

The contract was between the buyer and the retailer. There is no-one acting here as the retailer's agent, just a delivery service used by the retailer. The retailer is plainly and simply responsible for providing it to the buyer, it really doesn't matter what transpired with the mode of transport, unless it was specifically negotiated otherwise or specified differently in any contract/sale documents.

I hope it all works out for the best.

Best
JA

gregbradley · #9 01-12-2020, 06:25 PM

Another reason why paying with Paypal is good. Its easy to initiate a dispute that could lead to a refund.

Greg.

glend (Glen) · #10 02-12-2020, 12:31 PM

No new information. Tracking still stops on 24 November at 1:51pm in transit.
I have advised the retailer that I will need this settled by COB 9 December, as I am travelling in the lead up to Christmas. No response at this time.

GrahamL · #11 02-12-2020, 03:52 PM

Hopefully it shows up Glenn,I had a big freight company lose a large item twice and they didn't log it back into there system until it was in the correct state.

glend (Glen) · #12 02-12-2020, 07:43 PM

Good news, a diligent courier driver from the NSW Central Coast spotted the missing scope box in a cage at the Newcastle depot this morning. It had apparently been sitting there since last Friday. He surmised that the lady that covers my area thought the box too heavy and simply left it there. He decided to put it on his truck as he has to go past my area on his way home to the Central Coast. So he dropped it at my house at 6:30 this evening. Box looks to be in OK condition but I won't open it until tomorrow. It is a big heavy long thing.

It does not inspire investigative confidence in the courier management team, and Pack and Send, who have been unable to locate it. I emailed the retailer some photos of the box and address label, and he had not heard anything about it either.

Lessons learnt.

xelasnave · #13 02-12-2020, 08:21 PM

I am very happy your scope arrived.
I was going to post earlier and suggest it probably will turn up and that you should not worry...I can't wait to hear your impressions ..I would like a 150 mm...I had one and it was great until fungus attacked the objective..broke my heart.
But not any more if they break, have mice wee in the mirror or fungus or a chip etc etc...just get another one..boiled rice for two months.
Alex

Camelopardalis (Dunk) · #14 03-12-2020, 11:00 AM

Good to hear it arrived Glen

As per the other couriers thread, I've had very mixed experience with couriers. I'm sure they're all under a lot of pressure at the moment but it doesn't inspire a lot of confidence, and we're all in the same boat as to their whims, whether we're buyer or seller. Unfortunately, even big package can "slip through the cracks", even if it defies logic...

AusPost is my favourite for smaller packages at the moment