# Legal question re: shipping **URL:** \ **Category:** In My Humble Opinion\ **Created:** [March 28, 2021, 9:59pm UTC](https://boards.straightdope.com/t/legal-question-re-shipping/938928 "2021-03-28T21:59:02Z")\ **Posts on this page:** 20\ **Page:** 2
**Author:** ![Princhester](https://avatars.discourse-cdn.com/v4/letter/p/3e96dc/32.png) [@Princhester](https://boards.straightdope.com/u/Princhester)\ **Post date:** [March 29, 2021, 12:45am UTC](https://boards.straightdope.com/t/legal-question-re-shipping/938928/21 "2021-03-29T00:45:21Z")
> [@Melbourne](#): > > if the product is lost or is spoiled, the shipping company _has no contract with anybody to make good the damage_ I think you probably mean their contract says they have no such liability. There is a lot of statutory intervention in this field, meaning that they may have contractual liability whether they like it or not. Particularly in the consumer area. Less so in business. And then there’s potential tortious liability as I’ve said. ---
**Author:** ![Princhester](https://avatars.discourse-cdn.com/v4/letter/p/3e96dc/32.png) [@Princhester](https://boards.straightdope.com/u/Princhester)\ **Post date:** [March 29, 2021, 12:52am UTC](https://boards.straightdope.com/t/legal-question-re-shipping/938928/22 "2021-03-29T00:52:35Z")
> [@Crankyhillbilly](#): > > I recently saw where if a container falls off a ship at sea the shipping company is not responsible… You saw wrong. It’s not that simple. Might be. Might not be. The reason it fell off is highly relevant. And responsible… for what? There are lots of consequences of a container going overboard. ---
**Author:** ![Crankyhillbilly](https://avatars.discourse-cdn.com/v4/letter/c/7993a0/32.png) [@Crankyhillbilly](https://boards.straightdope.com/u/Crankyhillbilly)\ **Post date:** [March 29, 2021, 1:00am UTC](https://boards.straightdope.com/t/legal-question-re-shipping/938928/23 "2021-03-29T01:00:03Z")
I read this is a fact of maritime law and not subject to individual countries laws. Like if you find a sunken treasure it is not yours. It is owned by whomever owned it when it went down (or their insurer). I suspect that this is also true with a lost container. ---
**Author:** ![Princhester](https://avatars.discourse-cdn.com/v4/letter/p/3e96dc/32.png) [@Princhester](https://boards.straightdope.com/u/Princhester)\ **Post date:** [March 29, 2021, 1:02am UTC](https://boards.straightdope.com/t/legal-question-re-shipping/938928/24 "2021-03-29T01:02:58Z")
You suspect incorrectly. I’ve been practicing maritime law for 30 years and at this point could probably attempt to give you a rambling off the cuff lecture about the factors involved but it would take a couple of hours and we would both end up confused. ---
**Author:** ![Saint\_Cad](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/saint_cad/32/18907_2.png) [@Saint\_Cad](https://boards.straightdope.com/u/Saint_Cad)\ **Post date:** [March 29, 2021, 1:14am UTC](https://boards.straightdope.com/t/legal-question-re-shipping/938928/25 "2021-03-29T01:14:26Z")
> [@gdave](#): > > It’s not your property. You haven’t taken possession of it yet. It’s still the seller’s property. I paid for it but it’s not mine … it’s still the seller’s property? I don’t think that is accurate. But then … > [@doreen](#): > > But since every company and shipper I have ever dealt with treats the transaction as if it is FOB destination (which means title passes when the buyer receives it ) rather than FOB origin/shipping point (which means the buyer takes title when the seller ships) , It seems like this might be the answer to my legal question. ---
**Author:** ![doreen](https://avatars.discourse-cdn.com/v4/letter/d/858c86/32.png) [@doreen](https://boards.straightdope.com/u/doreen)\ **Post date:** [March 29, 2021, 1:15am UTC](https://boards.straightdope.com/t/legal-question-re-shipping/938928/26 "2021-03-29T01:15:26Z")
Well, I don’t think I was making assumptions so much as misunderstanding. I’m not sure why you said > In a standard FOB contract property passes at the time the property is given to the carrier. if you didn’t mean that that it’s the standard contract for most consumer purchases. Ebay listings may say that - but ebay isn’t the seller. I’ve never seen anything saying the risk of loss or damage is on the buyer when I’m buying from a retailer such as Amazon, Best Buy etc. ---
**Author:** ![Princhester](https://avatars.discourse-cdn.com/v4/letter/p/3e96dc/32.png) [@Princhester](https://boards.straightdope.com/u/Princhester)\ **Post date:** [March 29, 2021, 1:16am UTC](https://boards.straightdope.com/t/legal-question-re-shipping/938928/27 "2021-03-29T01:16:23Z")
As I’ve said, it depends. It is possible to (for example) sell things on terms that mean risk and title in the goods passes on arrival at destination, regardless of payment. ---
**Author:** ![Melbourne](https://avatars.discourse-cdn.com/v4/letter/m/b5e925/32.png) [@Melbourne](https://boards.straightdope.com/u/Melbourne)\ **Post date:** [March 29, 2021, 1:21am UTC](https://boards.straightdope.com/t/legal-question-re-shipping/938928/28 "2021-03-29T01:21:25Z")
> [@Saint\_Cad](#): > > I paid for it but it’s not mine … it’s still the seller’s property? I don’t think that is accurate. In that case, you paid for it, but until (whatever), they have a debt. Like if you gave your brother $500 to buy a lawnmower for you. You don’t own a lawnmower yet. It depends on the terms of the contract (and commercial law and consumer law). ---
**Author:** ![Princhester](https://avatars.discourse-cdn.com/v4/letter/p/3e96dc/32.png) [@Princhester](https://boards.straightdope.com/u/Princhester)\ **Post date:** [March 29, 2021, 1:22am UTC](https://boards.straightdope.com/t/legal-question-re-shipping/938928/29 "2021-03-29T01:22:08Z")
I said it because it depends. It can be either way. ebay listings are put up by sellers so I’m not sure of your point. Major retailers may well sell on terms that they mean they accept transit risks. That doesn’t mean it’s standard for everyone. ---
**Author:** ![penultima\_thule](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/penultima_thule/32/3833_2.png) [@penultima\_thule](https://boards.straightdope.com/u/penultima_thule)\ **Post date:** [March 29, 2021, 1:26am UTC](https://boards.straightdope.com/t/legal-question-re-shipping/938928/30 "2021-03-29T01:26:15Z")
> [@Princhester](#): > > could probably attempt to give you a rambling off the cuff lecture about the factors involved At some other time a discourse on the distinctions (and if they were still maintained) between flotsam, jetsam and lagan would be interesting … 🙃 ---
**Author:** ![Princhester](https://avatars.discourse-cdn.com/v4/letter/p/3e96dc/32.png) [@Princhester](https://boards.straightdope.com/u/Princhester)\ **Post date:** [March 29, 2021, 1:27am UTC](https://boards.straightdope.com/t/legal-question-re-shipping/938928/31 "2021-03-29T01:27:34Z")
> [@Melbourne](#): > > In that case, you paid for it, but until (whatever), they have a debt. Like if you gave your brother $500 to buy a lawnmower for you. You don’t own a lawnmower yet. Not really a debt. They have a contractual obligation to provide the goods. The more accurate analogy would be that you hand over $500 in a store, to buy a mower. At some point after that, one of the mowers in stock becomes yours. But the exact point that occurs is subject to contract. It may well _not_ be at the point you actually hand over the $500 - they may for example have 20 of the model of mower you want on shelves and they haven’t even got one down for you yet - who’s to say which one is yours? But at some point one of them becomes yours. ---
**Author:** ![doreen](https://avatars.discourse-cdn.com/v4/letter/d/858c86/32.png) [@doreen](https://boards.straightdope.com/u/doreen)\ **Post date:** [March 29, 2021, 1:40am UTC](https://boards.straightdope.com/t/legal-question-re-shipping/938928/32 "2021-03-29T01:40:42Z")
> [@Princhester](#): > > ebay listings are put up by sellers so I’m not sure of your point. My point is that you aren’t buying from ebay and ebay didn’t write the listing- I could list something on ebay and say the buyer takes the risk even if ebay’s own policies say that the seller takes the risk (which they do for many transactions) @[Saint\_Cad](https://boards.straightdope.com/u/Saint_Cad) - was the seller unhelpful or have you not been able to reach them yet? ---
**Author:** ![Northern\_Piper](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/northern_piper/32/5304_2.png) [@Northern\_Piper](https://boards.straightdope.com/u/Northern_Piper)\ **Post date:** [March 29, 2021, 1:58am UTC](https://boards.straightdope.com/t/legal-question-re-shipping/938928/33 "2021-03-29T01:58:47Z")
> [@Princhester](#): > > I would say most. In fact I’m not aware of any that don’t. It’s a bailment for reward. Is that tort, or a property claim? I’ve always thought of bailment as a property issue. ---
**Author:** ![Princhester](https://avatars.discourse-cdn.com/v4/letter/p/3e96dc/32.png) [@Princhester](https://boards.straightdope.com/u/Princhester)\ **Post date:** [March 29, 2021, 2:22am UTC](https://boards.straightdope.com/t/legal-question-re-shipping/938928/34 "2021-03-29T02:22:41Z")
YJMV (your jurisdiction may vary) but around here bailment is just a description of a certain factual situation, in respect of which certain legal consequences flow. One being a duty to take reasonable care to return goods in the same condition as when provided. ---
**Author:** ![UltraVires](https://avatars.discourse-cdn.com/v4/letter/u/ecccb3/32.png) [@UltraVires](https://boards.straightdope.com/u/UltraVires)\ **Post date:** [March 29, 2021, 2:30am UTC](https://boards.straightdope.com/t/legal-question-re-shipping/938928/35 "2021-03-29T02:30:05Z")
> [@Northern\_Piper](#): > > I’ve always thought of bailment as a property issue. I agree. You send me $500 for my copy of the “History of West Virginia Law” a hypothetical rare book. I accept your $500 and place the book in the care of a common shipper with instructions to deliver it to Northern Piper at your law office. Your offer and my acceptance, and your payment makes that book now YOUR property. It wouldn’t make sense otherwise. If it is still my property, I could keep it, burn it, or sell it to another. I agree with **Princhester** and others that my placement of the book with a common carrier, let’s just say FedEx, creates a bailment in which it has a duty of due care to get this book to you. That’s the common law, but I could see exceptions such as if we expressly said in our contract that you assume all expenses if shipment is lost or some other weird contract language, or if Fed Ex has somehow used an adhesion contract that will hold up in court to exclude you from holding them liable, but I think that this should best be analyzed under contract law as I acted as your agent to use a common carrier to get the book to you, therefore you have a cause of action against Fed Ex… It’s an interesting hypo, but I think Fed Ex needs to get the book to you. ---
**Author:** ![UltraVires](https://avatars.discourse-cdn.com/v4/letter/u/ecccb3/32.png) [@UltraVires](https://boards.straightdope.com/u/UltraVires)\ **Post date:** [March 29, 2021, 2:33am UTC](https://boards.straightdope.com/t/legal-question-re-shipping/938928/36 "2021-03-29T02:33:38Z")
Shorter version: You paid me $500. I received it. I agree that the book is now yours. Now what? You instruct me to place your book in the care of a common carrier addressed to Northern Piper at your law firm. I am acting as your agent when I place the book in the common carrier’s hands. I am your agent. You have standing to assert any rights I may have against the common carrier. ---
**Author:** ![ASL\_v2.0](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/asl_v2.0/32/3525_2.png) [@ASL\_v2.0](https://boards.straightdope.com/u/ASL_v2.0)\ **Post date:** [March 29, 2021, 2:46am UTC](https://boards.straightdope.com/t/legal-question-re-shipping/938928/37 "2021-03-29T02:46:55Z")
> [@UltraVires](#): > > It wouldn’t make sense otherwise. If it is still my property, I could keep it, burn it, or sell it to another. I agree with **Princhester** and others that my placement of the book with a common carrier, let’s just say FedEx, creates a bailment in which it has a duty of due care to get this book to you. But what if the book is perishable (or just say it’s not a book, it’s what the OP actually ordered) and you (or the shipper) did not tell this common carrier that it was perishable? So they don’t lose it so much as they fall short of getting it to you in a condition that preserves its value. Does the foreseeability (or non-foreseeability) of the loss not factor into this at all? Common law being what is is, I mean… ---
**Author:** ![UltraVires](https://avatars.discourse-cdn.com/v4/letter/u/ecccb3/32.png) [@UltraVires](https://boards.straightdope.com/u/UltraVires)\ **Post date:** [March 29, 2021, 2:52am UTC](https://boards.straightdope.com/t/legal-question-re-shipping/938928/38 "2021-03-29T02:52:42Z")
> [@ASL\_v2.0](#): > > But what if the book is perishable (or just say it’s not a book, it’s what the OP actually ordered) and you (or the shipper) did not tell this common carrier that it was perishable? So they don’t lose it so much as they fall short of getting it to you in a condition that preserves its value. > > Does the foreseeability (or non-foreseeability) of the loss not factor into this at all? Common law being what is is, I mean… All else being equal? The carrier wasn’t told that this was a bushel of fresh crabs versus a book? I think almost certainly yes, it would absolutely make a difference, but it don’t think it would make a difference as far as the seller or buyer was concerned based on a duty of due care. In that case, the failure to inform the carrier would make that an issue between the buyer and seller as the shipper never agreed to a “rush” shipment because it was a perishable item. ---
**Author:** ![ASL\_v2.0](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/asl_v2.0/32/3525_2.png) [@ASL\_v2.0](https://boards.straightdope.com/u/ASL_v2.0)\ **Post date:** [March 29, 2021, 2:57am UTC](https://boards.straightdope.com/t/legal-question-re-shipping/938928/39 "2021-03-29T02:57:35Z")
Right, so it seems like, unless someone told FedEx this was perishable, even if they failed to get it to its destination quite on time, there would be some issues there with holding them liable for the loss, even ignoring whatever fine print they may have in their contract. And I would wager FedEx probably has some disclaimer along the lines of “X day delivery is a nice idea that we’ll aim for, in good faith, but if it doesn’t get there in X days that’s too bad, we will not be liable (unless maybe you tell us in advance what the deal is and pay extra for insurance, etc, etc).” ---
**Author:** ![Crankyhillbilly](https://avatars.discourse-cdn.com/v4/letter/c/7993a0/32.png) [@Crankyhillbilly](https://boards.straightdope.com/u/Crankyhillbilly)\ **Post date:** [March 29, 2021, 5:11am UTC](https://boards.straightdope.com/t/legal-question-re-shipping/938928/40 "2021-03-29T05:11:51Z")
Another factor is how you paid for it. Credit cards generally require that you receive the item before they will make you pay for it. Other payment methods may not. Getting the wrong item, spoiled instead of good, would count as not getting it from the CC companies perspective possibly. [Previous page](https://boards.straightdope.com/t/legal-question-re-shipping/938928.md?page=1) [Next page](https://boards.straightdope.com/t/legal-question-re-shipping/938928.md?page=3)