Andrew Hermes of Arizona Tortoise Compound

IMO: As a tortoise breeder myself, if I EVER did any type of deal with ANYONE and the animal I sent arrived dead, IT WOULD BE MY LOSS!!! I would make good on it!! I am sorry, but that is just the way I have always stuck by! I just can NOT see how ANYONE can NOT make good on this!! Its just SOOOO clear to me! It arrived DEAD!! I do NOT know either party involved, but this it so sad!! Lets just do the RIGHT THING!!!!!!!!!!!!!!!!!!!!

Ken Siffert

Also, I will say this about Andrew ATC, I have NEVER done any transactions with him, but have MANY friends who knows him well and ALL have ONLY told me good things!!!!!!!!!!!!

2 dead torts. What happens to the $1000? I suppose if adequate proof is supplied on both ends, it should stay where it is?

Originally Posted by ApexPredatorBoids

You're operating under the extremely false assumption that any given person's TOS are universally legally binding. A buyer agreeing to a seller's arbitrary terms, does not instantly take the seller out of a legally actionable position. Terms have to be "lawful" to be binding. There are general consumer protection laws (UCC), and there may also be jurisdictional factors that could come into play.

If the buyer actually has the means and inclination to pursue legal action, I believe that the court would have to deem the seller's terms to be fully in compliance with any applicable laws, for them to be upheld. Is it lawful for a seller to not provide a buyer's item, in the condition which it was described, based on unforeseen circumstances that were out of the buyer's control? While I don't pretend to know a hell of a lot about the legalities, I don't think it'd be nearly as cut-and-dry as some of you would like to make it seem.

On a personal note, whenever I read terms that stipulate that a buyer is SOL in the event of carrier errors, it just comes across as an extremely slimy way of doing business.

I Have got to say I have been in the hobby, business for 25 plus years. I have always as a buyer and seller operated under the pretense of shipper is not responsible for carrier delays. I have lived and died by this motto. This post above absolutely changes my mind. I have done a 180 and I am stubborn so that is hard to make me do. Your right a universal statement under Terms of service does not absolve responsibility of the shipper or seller of an item . Due care at a minimum has to be involved here. Even in a perfect shipping and packing scenario the Shipper contracted the freight company (UPS in this case) so how is any of that the buyers responsibility that they do not offer insurance on perishables. I hate to see anything go to court but, in this situation I would love to hear what a judge says on this matter. Also, Delta Dash is no better than UPS or FED EX et. Just google, Delta lost my cat, dog et and see how many issues they have. In conclusion This has happened to me 3 times. Twice with UPS and once with the old Airborne express (now DHL) where they have tied up the box in a plastic bag. In the case of Airborne express they actually put it in a steel drum and sealed it at the top. The drum was marked hazardous. It took a crow bar and wire cutters to get it open. The cause each time was something leaking from the box. I would bet that in this case, the tortoise peed and it was leaking from the box. Especially if the shipper used stryo which was the put together kind. The kind that comes from Superior enterprises et.. Not the full fish cooler kind. The edges don't form a tight fit and liquid can easily leak out. UPS is not going to take the time and energy to investigate an unknown liquid coming out. Also, the seller is bringing up the fact that its a 3rd party trade-transaction and is using that to say " I made nothing on the deal" don't fault me.. but, it doesn't matter. The seller for better or worse decided not to make a dime but still has the responsibility. In conclusion the box was not packed completely appropriately for shipping, UPS took action to correct the issue (they are not in the business of caring for animals, so they did what they did to contain the leakage). Also, I bet you the box was delayed because of the drainage.

First and foremost, what a horrible event and how awful for the tortoise! I know Andrew and have had animals shipped from him on multiple occasions. There is NO WAY he put a live animal in a plastic bag. He knows what he is doing and does it well!!! Unfortunately there is always risk in shipping live animals. It is the responsiblilty of BOTH parties to agree on how best to minimize these risks.

To my knowledge, no shipper will insure live animals. Ship Your Reptiles is the only company that offers such insurance. Delta does not unconditionally guarantee live animal shipments either.

One other thing that needs to be mentioned here for all to learn is that it is against UPS policy to ship endangered species. Here is a like to their website, http://www.ups.com/content/us/en/res...atened+Species.
It clearly states "In addition to the Prohibited Live Animals list provided here, any live animal that is an Endangered Species is prohibited by UPS and will not be accepted for transportation".

Call local lawyer and get papers served asap. This is a court matter now and shipper is liable. The TOS will not hold up in court one bit due to being anyone can start up a business and type out a TOS. Courts reject online terms of service that reserve the right to change at any time. And the buyer must agree to the TOS, just sending payment dont mean they agree to it, just means they didnt see it usually. When TOS change, buyers and or users of the site must re-agree to them in order for it to stand in court.

So regardless you will win in court for this case.

Originally Posted by RichsBallPythons

And the buyer must agree to the TOS, just sending payment dont mean they agree to it, just means they didnt see it usually.

Good point. I didn't want to further muddy the waters by getting into that aspect, but I did find an interesting article on the subject. Since it'd seem that many online reptile dealers use something akin to the "Browsewrap" method of implied agreement, i.e. "By sending payment, you're agreeing to my terms", the question of what exactly constitutes a tacit "agreement" becomes a bit more hazy. It'd seem that the "passive" agreements tend to be at least somewhat less binding. Since you brought it up, just thought I'd throw that out there. Wouldn't want people reading the following quote and thinking that it tells anywhere near the whole story.

Originally Posted by TeguBuzz

In regards to a lawsuit and court, as you stated Andrew - the case won't stand due to terms being posted in plain English on the sellers site.

Originally Posted by NIGRO51

UPS would only bag a leaking package.

Originally Posted by Brandy Pecanic

Just like Anthony said above... they only bag and tag dead bodies!

If you were referring to me as the Anthony above please read again.
leaking present participle of leak (Verb)





Verb




1.(of a container or covering) Accidentally lose or admit contents, esp. liquid or gas, through a hole or crack.

This is a difficult situation, however when you advertise an animal for sale, whether it is yours or belongs to someone else, in my eyes you are responsible. It is your responsibility to get the animal to its destination alive and unless you get the buyer to put in writing that they accept that if the carrier is delayed and the animal dies, then you should cover that loss. I can understand that you cannot simply fork out $3200, however if that were I, I would be offering the buyer $3200 credit with my business. At least that way the buyer can hopefully recoup their money through either the sale of those animals or goods purchased on credit with you, or be happy with those animals.

Shipping through UPS is illegal regardless as they do not accept live animals. This was made abundantly clear a few years back when shipyourreptiles stopped shipping temporarily. Anyone with any knowledge of the reptile industry would be aware of that.

As I say, this is a difficult situation. I had something similar happen to me 10 years ago. In one of the shipments I had arranged from the US to the UK, when I lived there, the seller in the US screwed up. I had ordered three Boelens pythons for a customer who asked if I could get some. I was simply bringing in some boas and balls, but the seller (a large dealer in Florida) said it was not a problem. The buyer wired the money to me, and me to Florida. Well, lets just say the Boelen's never arrived. I was out around $10,000 and the dealer said he did not have it to return. What did he do, he reluctantly sent me a ball morph that was worth that value. Of course, the market in the UK was not interested in a 10 grand ball at the time and I had to take out a loan and pay it off to repay the buyer. Even thought the seller in Florida screwed me, because I was brokering the deal, I was the one that had to make it right. Thankfully Karma caught up to the dealer in Florida in a big way. Long story short, if you broker a deal, you are responsible. No matter what your ridiculous terms are on your website, unless the buyer said I agree, and unless you have no conscience to realize that your shipping method was wrong, and plain illegal, I believe that the Tortoise compound should make this right to the full extent of the value ($3200). The story of the tortoise dying several weeks later is irrelevant. It was alive when it arrived and the buyer/trader made no issue relating to its health.

Just my two cents as someone with experience in brokering a sale that went wrong.

ATC, make it right. (I was actually looking at your site last week considering buying some red foots from you).

Warren

Originally Posted by Warren_Booth

This is a difficult situation, however when you advertise an animal for sale, whether it is yours or belongs to someone else, in my eyes you are responsible. It is your responsibility to get the animal to its destination alive and unless you get the buyer to put in writing that they accept that if the carrier is delayed and the animal dies, then you should cover that loss. I can understand that you cannot simply fork out $3200, however if that were I, I would be offering the buyer $3200 credit with my business. At least that way the buyer can hopefully recoup their money through either the sale of those animals or goods purchased on credit with you, or be happy with those animals.

Shipping through UPS is illegal regardless as they do not accept live animals. This was made abundantly clear a few years back when shipyourreptiles stopped shipping temporarily. Anyone with any knowledge of the reptile industry would be aware of that.

As I say, this is a difficult situation. I had something similar happen to me 10 years ago. In one of the shipments I had arranged from the US to the UK, when I lived there, the seller in the US screwed up. I had ordered three Boelens pythons for a customer who asked if I could get some. I was simply bringing in some boas and balls, but the seller (a large dealer in Florida) said it was not a problem. The buyer wired the money to me, and me to Florida. Well, lets just say the Boelen's never arrived. I was out around $10,000 and the dealer said he did not have it to return. What did he do, he reluctantly sent me a ball morph that was worth that value. Of course, the market in the UK was not interested in a 10 grand ball at the time and I had to take out a loan and pay it off to repay the buyer. Even thought the seller in Florida screwed me, because I was brokering the deal, I was the one that had to make it right. Thankfully Karma caught up to the dealer in Florida in a big way. Long story short, if you broker a deal, you are responsible. No matter what your ridiculous terms are on your website, unless the buyer said I agree, and unless you have no conscience to realize that your shipping method was wrong, and plain illegal, I believe that the Tortoise compound should make this right to the full extent of the value ($3200). The story of the tortoise dying several weeks later is irrelevant. It was alive when it arrived and the buyer/trader made no issue relating to its health.

Just my two cents as someone with experience in brokering a sale that went wrong.

ATC, make it right. (I was actually looking at your site last week considering buying some red foots from you).

Warren

False, They accept many species for shipping, but not snakes

Amphibians (All): Examples: frogs, salamanders, toads
Crustaceans (All): Examples: crabs, crawfish, lobsters, shrimp
Fish (All)
Insects (Limited to beneficial insects only): Examples: bees, butterflies, crickets, lady bugs
Mollusks (All): Examples: clams, mussels, snails
Reptiles (Limited to the following):
- Lizards: Examples: chameleons, geckos, iguanas, monitors, flying dragons
- Turtles: freshwater turtles (except: snapping turtles), land tortoises, sea turtles
Worms (All)