‘Maybe your parcel bought on November 11st has been burned. The truck transporting parcels was set on fire on the highway, and the 13 tons of parcels were reduced to ashes.’
What? ?! I can’t help thinking of the tough moment preparing to rushing to purchase and waiting to pay for my commodities even if I was quite sleepy. That is the land I made for myself, so lay my parcel down please. As the legal porter, we lawyers persisting in serving the public, so I written this article for you immediately without time to be sad as soon as the news was announced.
If your parcel was really burned, what can you do?
Calm down! You should just wait for it at home patiently.
According to Beijing Daily, the aforementioned fired truck is from BEST EXPRESS and the person in charge said that nearly 6000 of the 7000 express tickets on the truck will be reissued, while the rest will be refunded according to the needs of consumers.
Hey, the merchants lose money which is not the case. Based on the online shopping contract between the buyer and the seller, now the buyer can not receive the parcel, and the merchant should naturally bear the responsibility of reissue or refund. In fact, the express company is who bears the ultimate responsibility because of the carriage contract signed by the seller and the express company. The express company does not carry out the obligations to transport parcel safely, naturally causing it to bear the corresponding liability for breach of contract. As to the means of bearing, it depends on the agreement between the seller and the express company.
In fact, express being lost or damaged often happens in life, so what legal knowledge we should know when we are the senders rather than the recipients.
When we send express, the couriers usually ask whether you want to guarantee price. So what is that? Simply speaking, guaranteed price refers to the sender’s ‘declared value’ of the parcel. If we choose to guarantee the price and pay the corresponding guarantee fee for our parcel, the express company will determine the liability according to the guarantee price rules when our parcel are lost. In the following paragraph, we’ll discuss the liability of the express company when there is a guaranteed price or not.
Ⅰ.insured price:
According to the choice of the sender, guaranteeing price is divided into three kinds, including the equal amount of the guaranteed price, the insufficient amount of the guaranteed price and the excess amount of guaranteed price. For example, what can be done when Tom sends Jerry cheese worth 2000 yuan, but the cheese is eaten by the courier Spike in transit, resulting in the loss of the parcel.
When Tom chooses the equivalent guaranteed price consistent with the actual value of the parcel i.e. 2000 yuan, the express company will compensate Tom 2000 yuan according to the guaranteed price. As the saying goes, choosing your own way, and going forward even if kneeling. If Tom chooses the insufficient amount i.e. 1000 yuan, Tom usually gets only 1000 yuan even if the guaranteed price is lower than the actual value of the parcel.
But if the guaranteed price is 5000 yuan because Tom regards this cheese symbolizing friendship as a treasure, can he get 5000 yuan? The answer is no because the express company has its own considerations. As mentioned in the express mail bill contract, you’ll be compensated according to the actual value if the claimed value of the consignment is higher than the actual value. Almost all the express companies will write similar clause in the contract, and this clause is not against the law, so in accordance with industry practice, Tom can get only 2000 yuan in guaranteed price compensation.
Ⅱ. uninsured price:
On the 3rd of this month, Ms. Deng from Chengdu sent a Chinese painting worth 700,000 yuan to Chengdu by express from Beijing without insurance.
We will confront this situation in most of the reference cases in which the relevant express company would let one phrase ‘we are practicing persuasion to the law’ down. The aforementioned law called postal law stipulates in article 47 that, you will be compensated according to the actual loss but the maximum amount of compensation shall not exceed three times of the fees collected, if the vouchered postal materials are lost, damaged or the contents are deficient. Do no excuse for it.
No! The aforementioned stipulation actually is the compensation rules for postal enterprises which refer to CHINA POST group company and its wholly owned and holding enterprises providing postal services, while the express companies such as SF, sto, yto, distinguished from postal enterprises, shall apply civil law.
The contract law stipulates that, the carrier is liable for damages in case of damage to or loss of the cargoes in the course of carriage, provided that it is not liable for damages if it proves that such damage to or loss of the cargoes is caused by force majeure, the intrinsic characteristics of the cargoes, reasonable depletion, or the fault of the consignor or consignee.
Although saying as that, the express company tends to compensate according to three times the freight appointed in the contract if the sender sates the uninsured price. So if what you send is expensive but you haven’t read the contract, you maybe suffer a great loss. How? Sue the express company with carriage contract dispute and ask it to compensate according to actual loss.
But you should know that the aforementioned kind of litigation is not invincible because our country proposes freedom of contract. If the sender know the compensation standard clearly but still signs the contract, his claims to ask express company to compensate actual loss won’t be supported by the court.
In judicial practice, the express company’s prompt obligation has become the key to the outcome of such cases. According to the judicial interpretation of the Supreme Court, the party providing the standard terms, that is, the express company, shall use the words, symbols, fonts and other special marks sufficient to attract the attention of the other party and explain the standard terms according to the requirements of the other party aimed at the clauses exempting or limiting liability when concluding the contract. Judges in different regions have not yet form a unified standard on whether express companies fulfill the prompt obligation. However, in the case of Guangdong Province, unless the express company can provide sufficient evidence to prove that the sender is aware of the indemnity clause, the judge will generally assume that the express company has not taken reasonable measures to bring the restrictive liability clause to the sender’s attention, thereby finding that the clause is invalid and supporting the sender’s claim for compensation for actual loss. Giving a tip here, the sender must provide sufficient evidence to prove the actual value of the parcel, such as contracts, invoices and shopping vouchers and so on.
As an old saying goes, the law does not protect those who sleep on their rights. It is recommended that when you send the parcel, you’d better carefully read the contents of the express bill and the compensation terms of endorsement, and choose the insured service for sending valuable parcel.
