Hermes have lost my guitar- Need advice please. Any lawyers here?

Alegree

danny_777 said:

Alegree said:

Adey said:

They can't say "we are allowed to lose your parcel without compensating you because it's a musical instrument".

If your parcel doesn't turn up (and it probably will) I dont think saying "we don't compensate people if we lose their guitar" holds any water...

Yes they can, it's an contractually binding exemption clause. All their liable for is their failure of service, not consequential losses. Unfair? Very. Legal? Sadly so. 

That's not consequential loss. Consequential loss would be, for example, if you lost income from being unable to perform a gig, or complete an onward sale, because the guitar did not arrive. I.e. the further losses were a CONSEQUENCE of Hermes' loss. It is remote, and usually excluded. This sort of loss most often arises where parts or tools are delayed, or sales are screwed up through, for example, cargoes being lost at sea. You can claim for the value of the cargo, but not additional losses you've suffered.

Loss of the actual package is direct loss.

If you want the actual law on this google some discussion of Hadley v Baxendale [1854] EWHC .

You can claim for consequential losses provided they're not explicitly exempt and  don't exceed the remoteness test adopted in the Wagonmound case.

pjf

sev112 said:

Parker said:

I’ll be honest - I haven’t read all the responses to your thread. But I have lots of experience in this. I have always managed to get paid out on losses - even when everyone says I don’t have a leg to stand on. The main thing is to be persistent. I always argue that the contract is for them to take my item from A to B. If they fail to do so, then they’ve broken that contract. Just keep banging that drum and get on to social media. Eventually (May take a few weeks) they will concede (May need a couple of threats to Small Claims too.

This.^
Wait a bit longer.  

Then tell them you are going to small claims court, for breach of contract, which was to safely deliver your guitar to the aged location. 

at the same time, and as part of the same claim, make a parallel claim under tort.  If they try to say they have small print in your contract, they still have a professional duty of care, which they have breached and you have suffered loss - the 3 required component parts of a successful tort claim.

then, if relevant, make noises about potential mis-selling of insurance products, if relevant in your case.

was a very successful strategy for me recently.  After a months worth of faff emails back and forth, I gave them a weeks notice of going to court, and then had full value recompense within 1 hour. 

Agree it’s best to wait a bit, disagree with the rest.

Claim for breach of contract seems pretty hopeless where the terms of the contract exclude or limit liability for carriage of guitars. 

Claim in tort (here, negligence) seems equally hopeless assuming liability is excluded or limited.

Just my opinion and definitely not legal advice  

Adey

It'll probably turn up....

But, if it doesn't and the value of your direct loss is high enough and you don't want to just "write it off", invest a few quid in the small claims process. Despite what many people will have you beleive, it is the judges who will know what the law is and be very accommodating of people who are uneducated in the law.

Above all they will be correct.

prlgmnr

Adey said:

Despite what many people will have you beleive, it is the judges who will know what the law is 

I'll be the judge of that.

Teflon

Looking at their full list of "Excluded items", it includes: "Items which can be exchanged by themselves or with any other item for money or goods or services".

That would seem to cover just about anything a courier could ever be asked to deliver  .  Surely an unfair  clause, but then, I'm not a lawyer.

Arktik83

They're all on the take when it comes to Insurance. 

Even if you insured an item for it's full worth, checked and made sure it wasn't works of art, jewelry, musical instruments or anything that they didn't cover and you filmed the courier arriving at your doorstep with the said item smashed to bits, gave them video evidence it arrived damaged beyond repair and wanted to claim on insurance.  They would still try and find a way to say that they cannot reimburse you.

I think the only time a courier company would "see you in court" is if they felt like a judge could see their point of view.  And generally judges are quite reasonable and usually on the side of the claimant if it comes to loss of damage that was clearly due to negligence.  Like any insurer, they will generally make you "work" for your money in terms of reimbursement.  If it arrived a broken mess then I would say it'd be harder to make a claim because they can pin that back on you and say you didn't pack it sufficiently but if they've lost it then I would be inclined to push them all the way, how is it your fault they lost your item?  Even if they say "well our contract says it's OK if we lose your item" I wouldn't accept it.

Still holding out hope it's turned up safe and sound though! 

sunshinewelly

You have to agree to their terms and conditions as part of the agreement. If they exclude musical instruments as part of their terms then I don't think you would have a right to a refund. Some companies ie royal mail exclude musical instruments if damage occurs but will cover loss of the instrument. If their terms cover this situation then I don't know what you can legally do. Sorry

It may well turn up though 

Adey

This is still the Schrodinger's guitar theory.

Also, as a courier, can you deliberately or even accidentally smash up or "lose" a parcel containing a guitar without a care because you say you aren't liable in the T&C's?

But what if it isn't a guitar, but actually something that just looks like a guitar - maybe it has a string missing - not a guitar any longer. It might be a separate neck and body - not a guitar, guitar parts. It might be  guitar shaped toy - not a guitar.

Perhaps...

You just have to open the box

It might be a dead cat though, because you should have been more careful with the box....

blueskunk

Should have used some else for a custom shop guitar. 

sev112

pjf said:

sev112 said:

Parker said:

I’ll be honest - I haven’t read all the responses to your thread. But I have lots of experience in this. I have always managed to get paid out on losses - even when everyone says I don’t have a leg to stand on. The main thing is to be persistent. I always argue that the contract is for them to take my item from A to B. If they fail to do so, then they’ve broken that contract. Just keep banging that drum and get on to social media. Eventually (May take a few weeks) they will concede (May need a couple of threats to Small Claims too.

This.^
Wait a bit longer.  

Then tell them you are going to small claims court, for breach of contract, which was to safely deliver your guitar to the aged location. 

at the same time, and as part of the same claim, make a parallel claim under tort.  If they try to say they have small print in your contract, they still have a professional duty of care, which they have breached and you have suffered loss - the 3 required component parts of a successful tort claim.

then, if relevant, make noises about potential mis-selling of insurance products, if relevant in your case.

was a very successful strategy for me recently.  After a months worth of faff emails back and forth, I gave them a weeks notice of going to court, and then had full value recompense within 1 hour. 

Agree it’s best to wait a bit, disagree with the rest.

Claim for breach of contract seems pretty hopeless where the terms of the contract exclude or limit liability for carriage of guitars. 

Claim in tort (here, negligence) seems equally hopeless assuming liability is excluded or limited.

Just my opinion and definitely not legal advice  

If you go on most/many of the courier company websites when you book they ask what the package is.  If you state Guitar /Amp whatever, and they don’t reject at that point and rely on very small T&Cs that exclude them then they are on weak ground as a contractual T&C.

Tort however, is outside of contract law, therefore liabilities under contract are irrelevant.

Hullboy

I'll give you all an update on what has happened. 

Just to confirm a few things firstly. The guitar was sold on eBay and booked for a Hermes delivery via PackLink, eBay's intergrated courier service. With regards to Hermes knowing in advance what the item was, yes they did. I have checked my shipping invoice and all details from the listing, so item, value etc where carried across at the time of booking the courier. 

I have had no luck contacting a human being throughout all of this and thus have had to pursue enquiries with both PackLink and Hermes via Resolver. After many emails back and forth this past week, Hermes have offered no support to me and basically passed the buck onto PackLink. PackLink have alleged to have carried out an investigation into my parcels whereabouts and come to the conclusion that it is lost and can offer me no compensation. 

I have signed up to the consumer action group forum and apparently have good grounds to file a small claim courts against Hermes despite their 'non coverable' list they seem to adhere to. My claim will be have to be against Hermes as PackLink are conveniently based in Spain and therefore out of jurisdiction. 

The bottom line is, Hermes entered a contract to deliver my item from A to B and somehow managed to lose a parcel the size of a guitar within 12 hours of if entering their network. According to the consumer rights act, companies providing services, regardless of their terms and conditions have a duty to carry out a service with a level of reasonable care and skill, which is evidently lacking in this case. 

Apparently I have a good case against Hermes and will be pursuing a small courts claim to get my money back. 

Hassle I could really do without but it's fair chunk of money at stake here. 

tony99

Hullboy said:

I'll give you all an update on what has happened. 

Just to confirm a few things firstly. The guitar was sold on eBay and booked for a Hermes delivery via PackLink, eBay's intergrated courier service. With regards to Hermes knowing in advance what the item was, yes they did. I have checked my shipping invoice and all details from the listing, so item, value etc where carried across at the time of booking the courier. 

I have had no luck contacting a human being throughout all of this and thus have had to pursue enquiries with both PackLink and Hermes via Resolver. After many emails back and forth this past week, Hermes have offered no support to me and basically passed the buck onto PackLink. PackLink have alleged to have carried out an investigation into my parcels whereabouts and come to the conclusion that it is lost and can offer me no compensation. 

I have signed up to the consumer action group forum and apparently have good grounds to file a small claim courts against Hermes despite their 'non coverable' list they seem to adhere to. My claim will be against Hermes and PackLink is conveniently based in Spain and therefore out of jurisdiction. 

The bottom line is, Hermes entered a contract to deliver my item from A to B and somehow managed to lose a parcel the size of a guitar within 12 hours of if entering their network. According to the consumer rights act, companies providing services, regardless of their terms and conditions have a duty to carry out a service with a level of reasonable care and skill, which is evidently lacking in this case. 

Apparently I have a good case against Hermes and will be pursuing a small courts claim to get my money back. 

Hassle I could really do without but it's fair chunk of money at stake here. 

best of luck bud

Sameasabove

Hey Hullboy, any update on this? I'm really hoping it turned up.. 

I am in the same situation, been at national sorting hub for 10 days, found out this means Warrington? Do you know if that's where yours was?

So frustrating not being able to get hold of a human.. 

Did you claim? 

I just joined here to ask, do hope it's good news. 

TINMAN82

I sent an acoustic via Hermes recently. Took 3 days but was delivered. However it was picked up from my house by a very elderly lady who struggled to lift it out to her own little green fiesta! Had I been wearing shoes (or a bit sharper that morning)  I’d have carried it out for her! Didn’t inspire confidence in a professional courier company and I won’t be using them again.

Devil#20

So did it turn up then? Be nice to know after reading that lot.

Just as an aside it doesn't matter what is in Hermes terms and conditions necessarily. They can't absolve themselves of responsibility by claiming it's in their contract that they won't cover you for loss. In contract law that would be deemed an unfair clause and a court will ignore the contract in its entirety as "not worth the paper it's written on".

Many companies include unfair clauses and rely on people's ignorance of law not to challenge them when things go wrong. Amazing how many companies even believe that what they put in their terms and conditions is protected by law just because they drafted it. Absolutely not. That's not how law works. 

pjf

sev112 said:

pjf said:

sev112 said:

Parker said:

I’ll be honest - I haven’t read all the responses to your thread. But I have lots of experience in this. I have always managed to get paid out on losses - even when everyone says I don’t have a leg to stand on. The main thing is to be persistent. I always argue that the contract is for them to take my item from A to B. If they fail to do so, then they’ve broken that contract. Just keep banging that drum and get on to social media. Eventually (May take a few weeks) they will concede (May need a couple of threats to Small Claims too.

This.^
Wait a bit longer.  

Then tell them you are going to small claims court, for breach of contract, which was to safely deliver your guitar to the aged location. 

at the same time, and as part of the same claim, make a parallel claim under tort.  If they try to say they have small print in your contract, they still have a professional duty of care, which they have breached and you have suffered loss - the 3 required component parts of a successful tort claim.

then, if relevant, make noises about potential mis-selling of insurance products, if relevant in your case.

was a very successful strategy for me recently.  After a months worth of faff emails back and forth, I gave them a weeks notice of going to court, and then had full value recompense within 1 hour. 

Agree it’s best to wait a bit, disagree with the rest.

Claim for breach of contract seems pretty hopeless where the terms of the contract exclude or limit liability for carriage of guitars. 

Claim in tort (here, negligence) seems equally hopeless assuming liability is excluded or limited.

Just my opinion and definitely not legal advice  

If you go on most/many of the courier company websites when you book they ask what the package is.  If you state Guitar /Amp whatever, and they don’t reject at that point and rely on very small T&Cs that exclude them then they are on weak ground as a contractual T&C.

Tort however, is outside of contract law, therefore liabilities under contract are irrelevant.

What I wrote above referred to the UCTA 1977, which provides that liability for negligence (a tort) can be excluded or limited under a contract. So it’s not irrelevant in that sense.

On the the other hand, my response above was irrelevant because I should have been looking at the CRA 2015, as the OP has since mentioned, which regulates business-to-consumer contracts. Not UCTA 1977! Obviously I’m out of touch

Good luck to the OP, hope you come back with good news.