It is very unlikely that the seller shipped FOB.
No. It remains your property until your choice of carrier delivers it to the seller. You are responsible for delivering the paid for goods to the buyers.
This is what some eBay sellers seem to think, that once they hand it over to the carrier, the buyer takes all risk. eBay will disabuse them of that very quickly.
Some goods that are shipped by railway etc have off FOB rules, however.
Since this involves legal advice, let’s move it from GQ to IMHO.
There is a difference between having possession of a thing and having ownership of it. One can have ownership of something without ever having possession and vice versa. However, just because ownership has transferred, doesn’t mean that one assumes all risk for it, particularly if someone else has received payment for it as part of a sale and a condition of sale is that they ship it to you. Then it’s a question of what all the other conditions are.
What the FedEx contract said will be important. If that contract was with the shipper/seller, then it stands to reason, irrespective of who “owned” the thing being shipped, the shipper is going to have to be the one to pursue a remedy with FedEx, if there is even an opening to do so. On that note…
(1) no, OP, you did not specify that the item was marked perishable from the outset, you merely wrote here that it was perishable (there’s a difference) and (2) there may be more to it than just having the word “perishable” on the box.
As to whether or not the shipper/seller is liable to the buyer, that will probably depend on… whatever the contract between them says, or if something like, say, eBay was involved. If there is no contract, then this might just be one of those situations where the UCC actually applies (as opposed to those times when Sovereign Citizens insist it does). Like for real. Unless of course one or both of you isn’t in the US.
Anyway, point being, the question of “whose property it was” seems like ind of a red herring. Money was paid. As to who should eat the loss… that’s probably going to come down to whatever the contract said.
Does writing “perishable” on the box even matter? Isn’t the carrier is contractually obligated to provide only the services for which they were contracted, regardless of what is/isn’t written on the box?
Which immediately raises the question of what those contract terms are as to perishable goods. And how that fact must be communicated.
At least for ordinary air cargo, there are two streams of notification for special handling: information on the air waybill (AKA “paperwork”) that includes the magic codes for perishable, radioactive, alive, etc. That informs the computers and the bureaucracy of what’s needed. And secondarily appropriate human-readable labeling on the package exterior in prescribed colors, sizes, verbiage etc. That informs the guys and gals who actual handle, load, unload, and store the goods. A package tendered without the correct info and labels should not get past the carrier’s front counter, even if the “counter” is more notional than actual.
I would not be at all surprised to find that e.g. FedEx has very similar requirements for special shipments from special shippers. Probably contained in a large legal document called the Conditions of Carriage that you (any you) are agreeing to every time you submit a package to them. Whether you recognize that fact or have any knowledge of the details in the CoCs depends heavily on how sophisticated a shipper you are. But they are the terms you agreed to when you pushed the box across the counter at them & tendered your payment for transportation.
Many shippers of perishable goods just take their chances with a standard delivery that has an acceptable delivery estimate. If it spoils in transit due to unanticipated delay, the shipper just eats the cost of a replacement. They might get the shipping cost back from the carrier but not the value of the spoiled item. In the long run, it’s cheaper than paying for special handling on every shipment.
As with so many things in life, it comes down to a risk assessment, something that most of us are very bad at doing most of the time. Of course, if we stopped to assess the likely risk every time there is a choice of actions, we would likely stay in bed.
In business, however, there is time to make educated decisions, and weighing up the cost of ‘special handling’ or the cost of insurance against the potential loss if your goods get broken or lost, is one of those. Packaging and labelling is another decision as is the choice of carrier.
I had an acquaintance who had retired after working many years in the diamond trade in Hatton Garden. He told me that they regularly shipped diamonds around Europe by normal post in ordinary padded bags.I once visited a specialist packing place. They showed me some of what they do and I saw some highly sensitive electronic device being packed. There were several layers of cushioning, special anti-static wrapping, waterproofing and etc. It was very expensive but guaranteed that as far as was possible at the time, that device would arrive at its destination in the same condition as it left.
This. I have a small side business for which I ship a few hundred packages per year. I always decline the insurance, saving me a few bucks on each shipment. every now and then the carrier mangles or loses a shipment, and I have to eat the loss, but so far I’m way ahead.
FWIW, I spent years selling electrical equipment at the wholesale level, and EVERYTHING we sold was FOB factory, meaning the customer officially owned the products as soon as they left the loading dock.
This was reflected in our billing and invoicing procedures. We invoiced the customer at the time we shipped their order. If it was lost or damaged in route, we would send a replacement, but we also sent a second invoice.
Nothing ever shipped without being invoiced. NOTHING. Even if I sent a sample product to a good customer, we would issue an invoice, then whoever approved the sample would issue a credit memo canceling the invoice.
Now, this didn’t mean that if the shipper lost your product you were stuck paying for it - you usually didn’t have to. As we were selling wholesale, we had a multi-page dealer contract that covered everything, including our obligations to insure the product, the obligations of the shipper and the procedure in case of a dispute with the shipper or customer.
There was even something called a field scrap allowance, which basically acknowledged that certain products, like fluorescent lights, were easily damaged (and also cheap to make and difficult to return).
The factory would assume that a certain percentage of those products (I think it was 2%) would arrive damaged and they would credit a certain amount in damage claims without requiring that the product be returned or the damage proved.
So that second invoice was usually cancelled out by a credit memo when the lost product made its way back to us, or when the damage claim was resolved. The system worked well, and although the dealer contract spelled out the procedure for handling disputes, I never had to go there.
The only complaints that were problematic for us were shortages, which typically didn’t involve the shipper. This was the “your packing list said you sent 12 pieces of item X, but there were only 11 in the box” complaint.
We required (via our contract) that customers inventory the shipments as soon as they were received and contact us immediately with shortages.
Complaints received well after the shipment were almost always a case of “this box was kicking around the construction site for weeks, after we installed everything we came up one item short and we looked everywhere so you must’ve failed to send it.” That was usually inaccurate. Even shortages reported at the time the shipment was received were usually the result of customer error.
But how did we prove this…it’s just your word against theirs, and the customer is always right, right?
We proved it by reviewing the shipment weight, most individual products weighed over a pound and we knew exactly what the packaged weight of each piece was and what the empty boxes weighed.
So if you called me and claimed you only got 11 widgets, I could prove we sent all 12, and that proof was solid because the boxes were weighed (or the weight verified) by the shipper. I once had a customer claim they’d received a specialty panel without buss bars installed and the factory insisted that wasn’t possible. I believed my customer, and I proved they were right by proving that the panels they sent weighed less than a correctly made panel.
When I was working as a truck driver, I worked for a distribution and warehouse company that made a lot of deliveries to Supermarket Regional Distribution Centres - mostly full loads of 26 pallets or more. The bulk of the load was yoghurt, but there were other chilled goods as well.
Some RDCs insisted that I wait until they had separated all the different products and checked them off against the paperwork. Some (like Lidl) would not accept mixed pallets which made checking much faster, they also expected the drivers to unload their own trucks.
Two of the major supermarket chains took the approach that they unloaded all the deliveries for a whole day, which could be a dozen or more trailers and whoever delivered the final load would bring back a big bag of signed delivery notes. Shortages and over-deliveries were accepted within reason which reduced the paperwork burden a great deal.
We would never expect our customers to check in their shipments before the shipper left, but our dealership contracts required that shortages be reported within 24 or 48 hours of receipt - off the top of my head, I can’t remember which.
We had looser rules for less expensive products but most of the gear we sold was really expensive, most large shipments had a five figure value and the dealer cost on most of the individual components was between $100 and $3000 dollars.
So a claimed shortage was usually an issue that had to be resolved without taking the customer at his word. Frequently the reason for the claimed shortage was that the customer undercounted what they needed ( they would claim they only receive 11 widgets because they came up short once everything was installed, but I’d stop by and count myself and realize they’d installed twelve, but they really needed 13. )
We were looser with cheap products — we’d use the field scrap allowances to cover a claimed shortage on a fluorescent fixture order, but we couldn’t do that with the expensive stuff I specialized in,