Who's responsible? Buyer or Seller?

[jpman78]

First off my apologies if this is the wrong forum. Please move as neccesary.

A hypothetical question.

Who's at fault if a shipment is delayed and the customer cannot get the shipment either from the shipping company or cannot be at their home to accept delivery that day?

For a more specific scenario say a shipment had two 40 hour heatpacks and was shipped from one cold climate to another on 1/21. It left the origin, heat packs activated, at 6pm and was delayed one day. Customer and seller were in contact the whole time and customer said he was unable to pick up the shipment either at the receiver or be at home that day until the afternoon. The shipment, originally scheduled for delivery by 10:30am on 1/22 ended up having delivery attempted at 10:30am on 1/23 and was finally delivered at 3pm on 1/23. The heatpacks of course ran out after 10:30am and the animals had expired.

Does the seller still have to honor their live arrival guarantee? Or should the buyer have made more of an effort to pick the animals up before the heat packs ran out? Or should the buyer have been more forward thinking and planned the shipment better around his/her schedule?

Thoughts or comments would be appreciated.

[Mooing Tricycle]

I think both parties are responsible, once the package is in transit, for keeping track of its progress.Either of them Should have been in contact with eachother AND the shipping company to get the animals Indoors in a safe area until they could figure out what to do. if one person is unavailable, the other should take control of the situation.

In my personal experience, Fed ex WILL check the animals * you just have to be willing to be patient for them to find someone brave enough to check a snake shipment!*lol.
You really do just have to ask them. I had a shipment go astray for a day, and the seller was in NO WAY responsible for this problem. I kept track of the package and started calling fed ex to find out what was up.

The snakes ended up in FL. * when they were supposed to be in MA* A nice girl at fedex opened the box at my request and checked on the snakes. She also even ran to get heat packs for them on her lunch break. She really went above and beyond, and because of that, the snakes made it here safely the next day. :)

[kmurphy]

This will probably be moved to the General Business Discussion forum. I take it you could have been home on the 22nd but since it was delayed you were not able to be home.

If this is the case then unless the seller specifically stated that they were not responsible for shipping problems I think it is the seller. You should share some of the responsibility though because everyone has somebody that they can turn to to help them out in a situation like this. Neighbors, relatives, friends etc.

I know one time I had snakes coming in to Portland, Me. during a snow storm. They were redirected to Boston (2 hour drive) because of the storm so I drove there. By the time I got there the storm had stopped so they said they shipped them to Portland so I drove back to Portland. Then I find out they had grabbed them off the plane in Boston because someone said I was at the airport. I didn't have to drive back though I just had to wait 2 hours for the next Delta flight. My point is you have to do everything you can to make sure you get the animals as fast as you can.

[Cat_72]

This is a post more suited to the "General business discussions" forum or something along those lines, but I'm sure someone will move it for you. ;)

That said....there's a lot of things involved here. First of all.....40 hour heat packs have an approximate life of 40 hours, there should still have been some heat left in the box, especially if it was well insulated as it should have been. But then, I KNOW what it has been like in Iowa the last several days (I'm sitting a whopping 4 degrees right now)....and heat packs and insulation can only do so much. Myself, I wouldn't have shipped them at all with these extreme temps, but that's neither here nor there, other than the fact that if you both would have waited for more suitable weather, this may never have happened.

Personally........if I were the seller, I would try to work out an amicable agreement with the buyer. Yes, the carrier delay was not your fault, but neither was it the buyer's fault. I know with my schedule, I only have 2 days a week that I can send or receive shipments, it would be next thing to impossible for me to wait around and receive them a day later....though I would make every human effort to do so, or have someone else available to do so, but some folks simply cannot change their schedules unexpectedly. You can't be EXPECTED to plan 2 or 3 days at home "just in case" a package doesn't arrive the day it is supposed to.

OR...you or the buyer could have tried to have had them held at the nearest hub, where at least there would hopefully be heat.

There are so many variables....most folks have a "not responsible for carrier delays" clause in their TOS, but for me, well....I'd feel horrible if it happened, and since it was not either the fault of the seller or buyer.....I guess I don't necessarily think the customer should take the full brunt of the loss. But that's just personal opinion. Perhaps offering even a partial replacement, and waiting til warmer weather to ship would be a good-will gesture that would not only make the buyer feel better, but also reflect well on your caring for the customer. You probably have no legal obligation to offer the buyer anything, but well......

And eh..........wait a minute.......isn't TODAY the 21st?

[The BoidSmith]

In my personal experience, Fed ex WILL check the animals * you just have to be willing to be patient for them to find someone brave enough to check a snake shipment!*lol.

That's assuming the sender is a verified shipper, if not FedEx has every right to refuse delivery (as stated in their TOS) and return the package to the shipper. Delivery of reptiles is an exception to the general rule of FedEx.

I'm with Cathy on this one, although the TOS might protect the shipper he is the one that can determine if temperatures are adequate or not for shipping. Delays do happen and if the weather was not as extreme as it is right now the animals would not necessarily die in transit.

Finally, I strongly believe that the buyer pays to receive live healthy animals. If the seller is not able to make sure that happens he should not conduct business with live animals. Putting in your TOS that you are not responsible for delivering live animals (as "not responsible for carrier delays") is not a good business and ethical approach. It's understandable that it's out of your control but then don't ship if you are not willing to stand behind the outcome. Another story is if the buyer is not there to receive the package. Then it's his fault and the seller should not be held responsible.

Regards.

[jpman78]

The situation was hypothetical. :)

My concern would be that the buyer not trying to get the animal and just falling back on the "well it's a live arrival guarantee".

I believe it is BOTH peoples responsibilities to the animal. The seller to do everything in their power to ensure the animal is safe and the buyer to do whatever they can. If either fail to pull their weight then the responsibility falls more on them.

IF a situation were to arrise where they couldn't pick it up that morning or couldn't get it delivered I would probably have the local hub hold it. Atleast then it would stay warm. However if the buyer did not go and get it (or have someone pick it up for them) sometime that day before close then I would say the responsibility lies solely on them. That's my 2 cents.

I appreciate the feedback greatly. Coincides with what I was thinking. Thank you.

[Lucille]

U.C.C. - ARTICLE 2 - SALES
..PART 6. BREACH, REPUDIATION AND EXCUSE

--------------------------------------------------------------------------------

§ 2-613. Casualty to Identified Goods.
Where the contract requires for its performance goods identified when the contract is made, and the goods suffer casualty without fault of either party before the risk of loss passes to the buyer, or in a proper case under a "no arrival, no sale" term (Section 2-324) then

(a) if the loss is total the contract is avoided; and
(b) if the loss is partial or the goods have so deteriorated as no longer to conform to the contract the buyer may nevertheless demand inspection and at his option either treat the contract as avoided or accept the goods with due allowance from the contract price for the deterioration or the deficiency in quantity but without further right against the seller.

[John E Dove]

Just my .002 cents.
It would depend on when this was disclosed (assuming that this is the cause for delay in delivery;

customer said he was unable to pick up the shipment either at the receiver or be at home that day until the afternoon.


If this was not made known to the seller until after the shipment had been made and both parties had agreed that weather was acceptable for shipping with heat packs prior to shipping then the fault really falls on the buyer.

If this was made known prior to shipping then the seller should not have shipped until the buyer could be available to receive the package making the seller responsible.

If both parties did not agree that the weather was acceptable for shipping with heat packs then the seller is responsible.

Like I said just my .002 cents.

[The BoidSmith]

(a) if the loss is total the contract is avoided; and

If I'm interpreting this right the seller is supposed to return the money, right?

Where are this quotes from Lucille?

Thanks

[Lucille]

The quotes are from the UCC, Article 2: Sales; the Uniform Commercial Code which has been adopted by every state except Louisiana. Some states have minor variations so it is good to check but most states use the code largely as written.
It is important to note that the UCC not only allows but encourages people to contract the way they wish, and if the risk of loss is written into the contract between buyer and seller it will generally be honored; but the UCC rules are the default rules used when the buyer and seller did not specify who was to bear the risk.

[Golden Gate Geckos]

This is why it is critical that the sellers have explicit TOS that cover all the possible scenarios that can arise when shipping live animals. The seller should have the option to stick by their terms or not on a case-by-case basis.

The seller bears the responsibility to know what the weather/temperature condition are at the origin, sorting hub, and destination of the shipment, and should reserve the right to postpone shipping if those conditions are not optimum. Also, the seller is responsible for knowing and following the laws and TOS of the carrier for shipping live animals.

The buyer bears the responsibility to be there on the agreed upon date and time for the delivery of the package.

The shipping company is responsible for getting the package delivered on the contractual date and time for the service paid for. Unfortunately, most carriers will only guarantee the date/time of delivery, and not for live arrival of animals.

For example, if a seller ships a live animal when weather/temperature conditions are such that it could cause the death of an animal, it's the seller's fault if the animal perishes. If the shipment was delayed for reasons due to error on the part of the carrier, they are responsible for refunding the shipping costs to the seller. If the delay was due to unforeseen weather conditions, no one is at fault and the seller would have the option to stick by their live arrival guarantee and issue a refund... or not. If the buyer is not there to accept the package at the agreed upon date/time, the buyer is at fault and the seller is not obligated to stand by any live arrival guarantee or issue a refund.

[jpman78]

I agree wholeheartedly that it is up to the seller to make sure all conditions are ideal for shipment and that the onus of guaranteed live arrival is on their shoulders until it reaches the buyer's hub (for pickup) or doorstep.

However with or without shipping delays I believe it is up to the buyer to retrieve the package from the local hub in a timely manner or to be present for the 1st delivery attempt of the carrier.

Without the buyer contributing that much I think it would be at the discretion of the seller as to what, if any, compensation would be awarded to the buyer should anything happen to the animal(s). Also the buyer must be made aware of this prior to purchase (e.g. in a TOS)

Are their any good examples of TOS out there that state this or something similar?

Does this approach seem reasonable and fair?