I might well have given my ex-scarfie law clerk some grief for describing me as a Trade Me addict this morning. However, I was rather on the back foot, because I had just walked into the office with my latest Trade Me find, (yet another Bycrofts' biscuit tin), still in its courier box. Anyway, I had been thinking about couriers and lost parcels. If a courier parcel is lost, you have to make a claim to the courier company. Usually the courier’s contract provides that claims must be made within a short time frame – often as short as two or three working days. Why can they set this restriction when consumers' rights under the Consumer Guarantees Act are inalienable? Also, why is your claim usually limited to $1500 for each physical unit of goods? Since Roman times, carriers have enjoyed the benefit of special laws limiting or excluding their liability for lost parcels. This is because carriers traditionally carried parcels only as far as the edge of their turf, then passed the parcel on to the next carrier, who passed it on, and so on. Carriers usually lost control of the goods at an early stage. If they could be sued for the full value, they wouldn't want to be carriers. But society needs them. So legal rules evolved, whereby carriers were deemed to be liable for loss or damage but only up to a limited amount, unless they caused the loss deliberately. This meant that carriers could stay in business, but had incentives to look after the goods and to take care in choosing the next carrier. The current version of that law is the Carriage of Goods Act 1979, which sets default terms for the contract of carriage. It caps liability at $1500 per unit, unless there is a special contract in writing, signed by the consignor. ("Unit" means physical unit, such as a separate box, carton or pallet – or container, if you packed your own). It also gives carriers a statutory right to limit claim periods in their contracts, as this gives them a fighting chance of being able to track down the goods, and to make other practical changes. But what about the Consumer Guarantees Act1993? Obviously a courier service that results in a parcel getting lost doesn't fulfil its purpose. Can’t consumers just claim for breach of the guarantee of fitness for purpose? Yes, consumers can claim under the Consumer Guarantees Act, but their recovery will still be subject to the limitations imposed by the Carriage of Goods Act. This is because a little-known provision hidden in the back of the services part of the Consumer Guarantees Act provides that statutory restrictions on rights or liabilities will prevail. This makes sense. For example, electricians have to be able to comply with electrical safety regulations without having to worry about how that might affect their liabilities to consumers who might have asked for an installation which turns out to be potentially unsafe. And for consumers who use courier services, the Consumer Guarantees Act will apply, but their rights and remedies may be limited by the Carriage of Goods Act rules. So, if something gets lost in the courier, check the courier’s terms and conditions and make sure you make your claim in time! Anyway, I’d better run… there’s a no reserve auction closing in two minutes… I'm not really a Trade Me addict, you know!
This article is intended for general information, and should not be relied on as specific legal advice. You should consult a lawyer for advice relating to your own specific legal problems. Rae Nield can be contacted at raenield@marketinglaw.co.nz.
