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MyHermes Lost my eBay Buyers Parcel


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Hi,

I just need some advice on this one.

 

I was selling some car parts on eBay back at the start of Feb and a buyer contacts me after leaving a best offer asking if i would deliver to Australia.

 

I said i would only deliver to the uk.

 

The buyer then says could i deliver to his cousin in London who will send it onto him in Aus (Yes, [problem] goes through my mind) But i checked feedback etc reply with yes, as long as it is a confirmed uk address with eBay and PayPal which it was. Both addresses were London, although the PayPal payment name was different to the eBay PayPal listed ones.

 

I send the parcel at the start of Feb, via MyHermes insured and signed for (big mistake using them)

 

Buyer contacts me 2 months later start of April to say the parcel has not arrived at his cousins.

 

I check the tracking and it stops tracking at the MyHermes Hub, so i live chat with them and as it is over 28 days since i dropped the parcel off they wont help and i am not able to claim the paid for insurance for the missing parcel. I tell them i have only just been notified by the buyer that it has not been received, they basically say there is nothing they can do.

 

I then ask the buyer why he has left it two months to tell me the parcel has not arrived and he says his cousin was unexpectedly called away from home and only just told him...

 

So i have followed all eBay and PayPals rules and it looks like i have now lost over £175 with no fault of my own.

 

A tracking number was supplied and entered into eBays system the day i dropped the parcel off. Tracking is partly listed on the MyHermes website last seen at the Hub, but no 'delivered' or 'signed for'

 

So is there anything i can do? Or is it likely i will have to lose the item and £175 and still pay eBay PayPal fees and courier costs?

 

MyHermes wont even get anyone to check in the Hub or let the buyer go to their local Hub to enquire where it is, due to security reasons.

 

 

Here are the tracking details. Check out the date of the last known whereabouts... The day before it was at the hub???

 

Parcel collected

03/02/2015 12:51 Dropped off at the ParcelShop

03/02/2015 15:37 Received at the sender's local depot

 

On its way to the courier

04/02/2015 07:43 Sorted at national hub

03/02/2015 15:37 Received at recipient's local depot

 

 

 

Unfortunately i did not insure it for the items full value

 

Signature and compensation: Up to £50 compensation, Signature Required.

 

Customer service reply was:

: I have checked the system and can see that the tracking is not been updated since 4/2/15.Unfortunately due to the time lapsed, we are unable to investigate your query. Please be advised that any query does need to be addressed to us within 28 days from the last point of tracking. This also excludes you from being entitled to any compensation.

 

 

 

So as they did not actually deliver my parcel can i file a small claims court for the following?

 

Delivery cost £8.28

Lost parcel compensation £175

small claims costs £30?

 

Anything else to add?

 

when i refund the buyer, who would i file a small claims court .gov to?

 

Do i send a recorded delivery letter demanding compensation within 7 days or further action will be taken? Do i need a statement of non delivery from the buyer?

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There are two excuses which are commonly given by delivery companies to escape liability for a failed delivery.

 

The first is that a notification that the item was lost or not delivered was not made within the time limit stipulated by the delivery company – typically 48 hours or 7 days etc.

 

The second excuse is that the person complaining was the recipient of the parcel and was not the sender – meaning that the delivery companies contract was with the sender and they will only deal with the sender.

 

Both of these excuses have no validity.

 

The first excuse – that notification wasn't received within a prescribed time is also an excuse which is often used by insurance companies to deny liability.

 

The fact is that you cannot escape liability for having failed to perform a contract simply because of the failure by the customer to fulfil some administrative requirement after the basic breach of contract (the non-delivery) has occurred.

 

In insurance terms, the insured peril has already occurred and failure to notify the insurer within a stipulated time has not increased the risk or affected it in any way.

 

The second excuse has no validity because of the Contracts (Rights of Third Parties) Act 1999 http://www.legislation.gov.uk/ukpga/1999/31/contents which roughly speaking says that where a contract is intended to benefit a third party then in most cases that third-party will have rights under the contract. That is certainly the case in the situation of deliveries, hotel meals, and holidays.

 

According to your story, the delivery company is trying to rely on the first of these two excuses to try and escape liability. I don't think they have any basis for doing so and they are basically relying on something which seems to have become an industry standard and which most consumers unfortunately take at face value automatically give up any expectation of asserting any rights.

 

The final issue here is a bit more interesting as far as I'm concerned. The fact is that the item was under-insured.

 

Would this give the delivery company the right to insist that you only receive compensation at the insured level – £50?

 

Frankly I think that this is an iniquitous practice. It seems amazing to me that you make a contract with someone and they basically say "we promise to carry out this service for you but if we don't keep our promise and if we don't carry out our side of the bargain then we will only give you a partial compensation for your loss even though it is our fault. However, if you pay something extra then we will compensate you for your whole loss.

 

I have serious doubts about the validity of such an arrangement and I think that it should be brought before the courts.

 

I don't see why customers have to insure themselves against somebody's failure to carry out the contract. It seems to me that it is for Hermes to insure themselves in case something goes wrong. It seems to me that forcing the customer to insure is a bit like selling them an extended warranty. It is a trick by suppliers which is carried out on innocent customers and which encourages them to pay money to insure a risk which contractually the supplier of the services is already bound to do in law.

 

So your question is could you take a small claim? I think that the answer is yes you can.

 

Can you claim for the whole £175? Well I would say that yes you can – and it is certainly worth a try. Hermes will scream about it. I would expect they will offer you the £50 in order to settle but they may well go to court over the £175 and they will try to persuade the judge that it is your fault that you didn't insure.

 

You would have to use the arguments I have suggested above to say that it is not for you to pay money to make sure that Hermes didn't breach their contract. Hermes have a contractual duty to carry out their obligations under the contract and if they are worried that maybe they're going to breach the contract then it is for them to take out some insurance. By getting you to pay an insurance all they have done is force due to pay out for something for which you have already paid – the initial delivery fee.

 

If you want to go ahead with this then we would be very happy to help you. I think it is a very interesting point and somebody needs to try it out.

 

A small claim is very cheap and pretty well risk-free anyway. For a claim of this low value, I would say that it is worth a punt

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I just like to add here that to my mind getting customers to pay for insurance to protect them against what essentially amounts to a breach of contract by a service provider is equivalent to the mis-selling of PPI.

 

With PPI insurance, companies made huge amounts of money selling people insurance which in many cases they did not need because they were already adequately insured – or else it would not cover them because their personal circumstances do not allow them to qualify.

 

By getting the customers to purchase insurance so that the service provider is covered in the event that he (the service provider) fails to carry out their side of the bargain is an amazing con trick and what is even more amazing is that it has become the culture of delivery contracts going back for probably 40 or 50 years – or more.

 

If I was to be proved right in a court of law then of course this would be the opening of a huge can of worms.

 

If the service provider wants to have insurance in place in the event of his breach of contract, then it is for the service provider himself to get the insurance in place. No doubt he would then want to increase the cost of delivery in order to defray his expenses of providing the service – but that is not the way it is done at the moment.

 

Getting somebody to pay additional money simply to secure rights which they have already acquired under the contract is mis-selling. It is an example of selling duplicate rights. It is also an unfair commercial practice within the meaning of CPUT.

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If you look at their terms & conditions, specifically the items they exclude from compensation insurance or claim not to carry: https://www.myhermes.co.uk/help/carry-guide.html - Just about any claim could be rejected. Car parts are on the list of "excluded items", so small claims court may be the only recourse the OP has.

 

My view: If the contents had been declared at the time of shipping, and the carrier accepted the parcel, they also accepted responsibility and liability.

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Going back to the OP's original problem, if he has a tracking number he should win any ebay dispute and shouldn't refund the buyer.

 

Hi, i have the tracking number and it is also attached to the ebay delivery details.

 

The only thing is, the tracking does not state 'delivered' or 'signed for'

 

Surely eBay would not rule in my favour?

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I don't think they check the delivery status, just that it's trackable. In their eyes, if it's trackable it's safe. You have nothing to lose, worst case you will have to refund, which you were going to do anyway.

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