Legal Question in Civil Litigation in New York

Damaged Items during Shipping Who Pays?

I arranged for a guitar to be shipped to me COD from an individual over the internet. He arranged for the shipping and purchased $2,000 in insurance, (the amount to be payed). The gutar arrived damaged (internal damage) . The box didn't seem to be overly damaged. Called the shipper and Carrier within an hour of receiving. I did pay the COD amount BEFORE inspecting. Carrier will only deal with shipper because he initiated the shipment and purchased the insurance. It has been 4 months now and we have gotted nowhere. The shipper seems to think that he is doing me a favor by trying to get my money from the Carrier/Insurance company. Also that I signed for the package and therefore I accepted it in perfect condition. The way I see it he should refund my money and get HIS money from them. Who is responsible?


Asked on 10/07/03, 12:24 am

1 Answer from Attorneys
Andrew Nitzberg Andrew Nitzberg & Associates

Re: Damaged Items during Shipping Who Pays?

This has got to be driving you crazy and it would make me crazy also.

Because you are telling me that you are not confidant of the shipper/seller's intense determination to assist you, you might be better off dealing with the insurer yourself. The way to do this is to get the shipper/seller to 'assign' you his interest in the transaction and have you pursue the matter with the insurer.

Since this is a 2000 claim, it is still within the small claims limit of 3000. Getting an 'assignment' will enable you to deal directly with the insurer or, if they still refuse, enable you to sue them in small claims court.

Don't expect the insurer to roll over easily on this point, but it will break the logjam you are experiencing and help you take charge of this situation. ps - until you actually inspect the package you have not legally received the package. The claim that you signed for the package as 'ok' has no legal significance.

The fact that the exterior was ok only means that the shipper/seller may have sent a damaged piece of merchandise. Before going to court, ask the shipper/seller to send you a statement in writing that the item was in perfect shape when he boxed it.

You are welcome to a consultation for no fee at my offices at 42 West 44th Street, New York, NY. Please call for an appointment first � (646) 591-5786

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Answered on 10/07/03, 12:43 pm


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