Re: Haulage company liability
- From: Simon Hobson <simonsnews@xxxxxxxxxxxxxxxxxx>
- Date: Fri, 23 Jun 2006 19:59:43 +0100
On Wed, 21 Jun 2006 13:54:14 +0100, andyv wrote
(in message <1150894454.747670.131370@xxxxxxxxxxxxxxxxxxxxxxxxxxxx>):
Many thanks for your various comments guys. I had originally been told
that they would refund the haulage but now they're digging their heels
in over that too.
No mention of their terms on their web site, so that might go in my
favour I guess. They are a RHA member though.
Standard Disclaimer - IANAL !
It's more complicated than that.
Under English law, the contract has whatever terms were agreed at the time
the contract came into being - which is likely to be when they had given you
a price and you gave them an instruction to collect the goods for transport.
If the carrier has standard T&Cs, particularly ones that limit their
liability, the court would have to decide whether they had a) brought them to
your attention BEFORE the contract came into being, or b) you should
reasonably have known about them.
Unless you had a recording of the conversation, you could not prove one way
or the other point a.
Point b is even harder, and would depend on who and what you are. For
example, if you are someone that regularly sends stuff, then you could
reasonably be assumed to know that the carrier has standard T&Cs. But if
you've nver used a carrier before then the assumption could be that you
don't.
Then there is the matter of what (if any) paperwork you signed. If the driver
gave you some paperwork, particularly if you were required to sign it and
give them back one copy, and that paperwork clearly says that they have
standard T&C (or better still sets them out) then that weakens your case.
You could still argue that if they collected the goods based on a verbal
contract and gave you a receipt AFTER loading (ie execution of services under
contract has begun), then any different terms implied by that receipt are
null and void unless you agree to accept them.
Even further complicating matters would be if you informed them of the value
or fragility of the item.
Now, looking back to your original post, it's clear that the contract was
made verbally, and that you confirmed by fax. You had a receipt, but that was
not an official one and almost certainly didn't have any T&Cs on it. Assuming
they didn't tell you during the original conversation, they have not brought
any standard terms to your notice and therefore they will have difficulty
proving that they were agreed to form part of the contract. Simply having
them available if you ask is not sufficient if they do not bring their
existence to your attention.
You will have to stand firm on this, and I would suggest you consider the
small claims court. The process is quite simple, and the costs reasonable.
The other side are not allowed to incur heavy costs and expect you to pay
(though if you lose you may be ordered to pay their reasonable costs). You do
not need a solicitor, though you can use one if you wish.
http://www.hmcourts-service.gov.uk/infoabout/claims/index.htm
http://www.bbc.co.uk/crime/law/smallclaimscourt.shtml
You should claim for a full refund of both the value of the item, and the
carriage fee paid. There can be no question about the carriage fee - they
failed to transport the goods with due dilligence*. It sounds like they'll
argue the full value of the goods, and try to rely on the £1300/t standard
liability. The fact that they have an insurance policy that only covers that
is between them and their insurers - it has NO BEARING WHATSOEVER on your
claim against them UNLESS they can show that you knew (or could reasonably
have been expected to ask) about their limitation clause.
* I'm assuming that for an item this size it was not packed up and so they
would have difficulty claiming the damage was due to inadequate packaging.
They should either handle it suitably, or decline to carry it if they don't
think they can do so saely.
Before going to court, write to them (using recorded delivery) setting out
your claim, giving them a resonable deadline for payment, and making it quite
clear that action in the small claims court will follow.
They may simply write back setting out their £130 limit, possibly even
enclosing a cheque. If they do, do not cash the check**, but write back
explicitly rejecting their offer and repeating your claim.
** Caching the cheque could be construed as accepting their offer - you can
hold it against the debt, and if they 'cancel' it (ie tell the bank not to
honour it) then that's a criminal offence I believe.
It is quite likely that they will decide to simply settle rather than have
the hassle of going to court. That's certainly been my experience when I've
gone that way (when I used to run a small business).
.
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