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Where and how to sue DHL for damaged shipment and for the hardship, they caused me due to the way they handled my case? ASK A LAWYER

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callymo2j

Member
Ohio
I need your advice on how to go about suing DHL and other parties for the damage of my hard-drive containing my 2 x wedding ceremonies and receptions professionally edited videos and photos. The hard-drive was insured by DHL but when I received it failed to work and I got a computer specialist report that said the damaged was caused by excessive vibration during shipping because DHL did not apply any protective wrapping (bubble wrap). DHL refused my claim, said I and my wife are not the shippers and therefore cant submit a claim but, they named their agent who processed the shipment as the shipper. DHL refuses to communicate with us directly and their agent is reluctant to talk to us. The specialist report stated that the damage may not be reparable or very expensive to repair up to 4 times the insured value. Exhausted all peaceful attempts to resolve the issue for over 3 months and cops called on us by DHL agent.
 


Taxing Matters

Overtaxed Member
The details of exactly what happened with the shipment matter. Who was the actual shipper — it wasn't you, so who was it — the photographer or someone else? Who did the packing of the shipment, the shipper, DHL, or someone else? The details of the contract the shipper had with DHL and the details of the contract of insurance for the shipment also matter.

Typically in the contract for shipment the shipper waives any claim of liability against the shipper for damage done to the contents of the shipment beyond refunding the shipping cost unless the shipper buys insurance. And the insurance contract generally will limit the compensation that will be paid to the fair market value (not replacement value) of the item shipped. The value of any data on a hard drive would generally not be covered. Finally, the contract DHL had was with the shipper; that's who its customer was and that was the person to whom it owed its obligations. Thus, I think it unlikely you could prevail against DHL. And all the shipper will get out of DHL is likely the fair market value of the harddrive.

As for anyone else, there is not enough information here to know if you might have a good claim against them. Note, however, a fundamental problem in suing over most photos — photos may have great sentimental value, but typically have very little sale value. The law does not compensate you for sentimental value. It compensates you for the value of the item, i.e. what you could have sold them for. That means you are not likely to get much, if anything, for the loss of the photos.


It would have been very easy to protect against the loss of the data through the simple precaution of making a backup copy before shipping the harddrive. Was that done? If not, why not?
 

callymo2j

Member
Thank you for your quick response.
My wife went to DHL authorized shipping center to make the shipment, paid for it and the insurance. Her name is on all shipping documents and insurance as the shipper but DHL is claiming that their associate at the shipping center is the shipper. This contradictory to their own definition of the shipper " When ordering DHL’s services you, as “Shipper”, are agreeing, on your behalf and on behalf of the receiver of the Shipment (“Receiver”) .." About the insurance, my wife insured the item with DHL's Shipment value protection to the value of $2000 which is less than the cost of making the video and photos and also 4 times lower than the maximum amount quoted by Data recovery center to recover data from the damaged hard-drive. Here DHL's Policies on the insurance ;
Shipment Value Protection
DHL may be able to arrange Shipment Value Protection covering the value in respect of loss of or damage to the Shipment, provided that the Shipper so instructs DHL in writing, including by completing the Shipment Value Protection section on the front of the waybill or by DHL’s automated systems and pays the applicable premium. Shipment Value Protection does not cover indirect loss or damage, or loss or damage caused by delays.
No copy of the content of the hard-drive was made due to time and we did not know that it will get damaged in transit.
Do you still think I have a fair chance to fight DHL or should I just focus on the DHL authorized shipping center business owner who packaged the hard-drive? Finally, what can I do to improve my chances of winning?
Thanks
 

Zigner

Senior Member, Non-Attorney
OP says the shipping center did the packaging. What the OP needs to realize is that a "DHL Authorized Shipping Center" is not DHL. It's just a private retail business that is authorized to handle packages: http://www.rscentral.org/Programs/DHL-Express#64655-dasc-program

The OP's case (if any) is against the shipping center.

Furthermore, DHL's liability is specifically limited to the following:

...the value declared by the shipper, replacement cost, invoice value or actual cash value whichever is the lowest. Evidence may be requested to substantiate the declared value in the event of a claim.
(from http://www.dhl.com/en/express/optional_services.html)
 

justalayman

Senior Member
or should I just focus on the DHL authorized shipping center business owner who packaged the hard-drive?
Regardless of anything else, you will only be compensated for the actual hard drive. You will not be compensated for the contents (data) on the hard drive because you insured a hard drive. If you wanted the contents of the hard drive insured you would have had to specifically insure the contentsof of the drive.

Note; the insurance specifically excluded indirect losses. The loss of the data would be an indirect loss, but as it stands, you haven’t lost the data. All you’ve lost is the ease of reviewing it due to the damage of the hard drive.


I believe you have a valid claim against the insurance provider (you need to determine who that actually is) as well as the entity that packaged the hard drive but you can collect from only one.

I am at a loss as to your statement of there wasn’t time to copy the data. Obviously it’s too late to worry about that but since the data is not currently available and the world has not come to an end, the situstion itself has proven there was time to make a back up of the data before shipping it.
 

adjusterjack

Senior Member
My wife went to DHL authorized shipping center to make the shipment. No copy of the content of the hard-drive was made due to time
Then the loss of the photos was your wife's fault, nobody else's.

It takes only minutes to copy files from one storage media to another and common sense would dictate that she package the drive properly herself.

Sue somebody if you like, but you are almost guaranteed to lose.
 

cbg

I'm a Northern Girl
OP says the shipping center did the packaging.

Where does the OP say that? Maybe it's just because it's Friday but I'm not seeing it.
 

Zigner

Senior Member, Non-Attorney
... Do you still think I have a fair chance to fight DHL or should I just focus on the DHL authorized shipping center business owner who packaged the hard-drive? Finally, what can I do to improve my chances of winning?
Thanks
I KNEW I saw it - there it is.
 

callymo2j

Member
Regardless of anything else, you will only be compensated for the actual hard drive. You will not be compensated for the contents (data) on the hard drive because you insured a hard drive. If you wanted the contents of the hard drive insured you would have had to specifically insure the contentsof of the drive.

Note; the insurance specifically excluded indirect losses. The loss of the data would be an indirect loss, but as it stands, you haven’t lost the data. All you’ve lost is the ease of reviewing it due to the damage of the hard drive.


I believe you have a valid claim against the insurance provider (you need to determine who that actually is) as well as the entity that packaged the hard drive but you can collect from only one.

I am at a loss as to your statement of there wasn’t time to copy the data. Obviously it’s too late to worry about that but since the data is not currently available and the world has not come to an end, the situstion itself has proven there was time to make a back up of the data before shipping it.
My wife told the DHL authorized shipping center owner that the insurance was for the data in the hard=drive and not just for the hard drive because you can get the hard-drive for about $100 - $200 at most but it was insured for $2000
 

callymo2j

Member
Then the loss of the photos was your wife's fault, nobody else's.

It takes only minutes to copy files from one storage media to another and common sense would dictate that she package the drive properly herself.

Sue somebody if you like, but you are almost guaranteed to lose.
The hard drive contained videos that run for hours and more than a thousand copies of photos , even if she wanted to copy it, it would have not been easy as she is not that computer savvy and secondly, she shipped it to me a day after she got it as we were running out time because I needed to use it to make souvenirs that I will be bringing with me from Australia in a matter of weeks at that time.
 

Taxing Matters

Overtaxed Member
The hard drive contained videos that run for hours and more than a thousand copies of photos , even if she wanted to copy it, it would have not been easy as she is not that computer savvy and secondly, she shipped it to me a day after she got it as we were running out time because I needed to use it to make souvenirs that I will be bringing with me from Australia in a matter of weeks at that time.
That’s unfortunate, but you still almost certainly will not get any compensation for the loss of the data on the drive if you are unable to retrieve them, nor for the cost to retrieve them should they be somehow recoverable. First, the insurance policy likely excludes consequential damages in the first place and even if it didnt those are generally not recoverable in a contract claim anyway. As for the tort claim for negligence, while consequential damages might be recoverable, there is the problem that had your wife simply copied the data, as a prudent person should do, there would not have been that loss of data. That is likely contributory negligence that might well prevent recovery for that. And for both types of claims you have the problem that those videos and pictures almost certainly have no market value — no stranger is likely to pay much, if anything, for those. While they have great sentimental value, the law does not compensate you for sentimental value. You get compensated for the market value. I'm sorry to say that this may turn out be a hard lesson in the value of always backing up your data. Take the time to do it. It is well worth it because the loss of it if you don’t may be irreplaceable.

Does the photographer who took them have that data? Most keep the photos/videos they shoot in case the clients want more copies later.
 

callymo2j

Member
That’s unfortunate, but you still almost certainly will not get any compensation for the loss of the data on the drive if you are unable to retrieve them, nor for the cost to retrieve them should they be somehow recoverable. First, the insurance policy likely excludes consequential damages in the first place and even if it didnt those are generally not recoverable in a contract claim anyway. As for the tort claim for negligence, while consequential damages might be recoverable, there is the problem that had your wife simply copied the data, as a prudent person should do, there would not have been that loss of data. That is likely contributory negligence that might well prevent recovery for that. And for both types of claims you have the problem that those videos and pictures almost certainly have no market value — no stranger is likely to pay much, if anything, for those. While they have great sentimental value, the law does not compensate you for sentimental value. You get compensated for the market value. I'm sorry to say that this may turn out be a hard lesson in the value of always backing up your data. Take the time to do it. It is well worth it because the loss of it if you don’t may be irreplaceable.

Does the photographer who took them have that data? Most keep the photos/videos they shoot in case the clients want more copies later.
Thank you so much for your objective analysis and contribution to this matter, I appreciate your time and kind and consoling words. Apart from the fact that I have little chances of winning this case on its merits, I think I may have a chance to win based on how DHL and the business DHL AUTHORISED SHIPPING AGENT handled this matter.
1. My wife informed the DASC what she was shipping and they asked her to buy insurance to protect the value of the item. Note; inherently, DHL has protection for all packages they ship with or without additional insurance which is optional " DHL Express Terms and ConditionsDHL Express Terms and Conditions 6. DHL’s Liability ref http://www.dhl-usa.com/en/express/shipping/shipping_advice/terms_conditions.html
2. The DASC packaged the hard-drive (Zero protection, placed in a box 10 times the size of the hard-drive) was negligent by failing to make an effort to protect an item that they have just insured.
3. I made effort to fix the hard-drive or recover the data myself by approaching computer specialists but the cost quoted for the job was more than I can afford. I paid to have it evaluated twice and all reports plus quotes were forwarded to DHL on their request only for them to turn them down and suggesting that I take the risk to ship the hard-drive by myself to a lab in California who quoted me between $700 to $8000 to recover the data.
4. DHL showed ZERO duty of care to me as their customer, they would not even communicate with me or my wife directly claiming that we are both not the shipper. They said that the DASC was the shipper and only them would they communicate with directly and only them will submit the claims. Now, this raises the question as to who is actually the shipper in this matter. I believe my wife is the shipper and the DASC and DHL are one as the DASC is a contractor and representative of DHL. Secondly, all shipping documents and insurance papers have my wife's name as the shipper and here is DHL definition of SHIPPER.
" Shipper - Also referred to as the Consignor.
Read complete details of "Shipper" and their agreed responsibility in the DHL International Terms and Conditions of Carriage
I also wrote DHL customer service to get their own definition of SHIPPER Please, see below;
I will be more than glad to help you.
Based on DHL's systems records, a shipper is a person or company that sends goods to a receiver, or consignee, via some form of transport.
Based on Cambridge Dictionary, a shipper is a person who arranges for goods to be shipped. "
5. The DASC demanded to see the physical damage to the hard-drive after we explained to them that the damage was internal, not superficial. However, I took the Hard-drive to them but they ended up calling the cops on me because I asked them to take the drive and plug into their computer so that they can understand the damage. When the cops arrived, they demanded that we never return to the business except with cops presence. Now, how can I be a threat to this business?
6. I reported this behavior to DHL complaint department but they simply told me they cannot do anything about it just as they told me that they cannot force the business (DASC) to engage and correspond with us.
7. It took about 5 weeks before the DASC submitted our claims after refusing to talk to us and lying to my wife several times that they have submitted the claims while DHL denied receiving any claims from them. The owner of the business was the one doing all these and she started interrogating me and my wife, asking for receipts and documents related to the hard-drive and making things difficult. She will not answer or calls nor respond to email and we cannot physically supply her any documents without Police present. We did go with police twice before giving up as it was an unnecessary use of law enforcement.
8. This matter has been going since March and is getting exhausted by it. I tried to contact the photographer to see if DHL can pay for him to make another copy for us but unfortunately, he has deleted the files because they only store files for 3 months after they give a copy to their clients as they have no free space to store old videos and photos because they make thousands of them every week. I suggested that I hand over the Hard-drive to DHL to deal with the data recovery and to return the file to me once they have recovered all the data but they did not buy that idea.
9. Now, DHL stopped communications with me and the DASC did the same despite reporting this matter to BBB. The DASC simple wrote BBB that DHL closed the matter due to insufficient evidence. (false)
10. Finally, DHL will not have in writing to me what they are doing except for the complaint officer who told me that I should contact the DHL legal team, that she cannot do anything about the behaviour of the DHL case officer not talking with me, and the behavior of the DASC who called the cops on me. I demanded records of all my telephone conversations with DHL as DHL repeatedly denied that the DASC was their representative, in fact, they said the business is not even DASC but an ordinary account holder. That was also false as I found the business listed on DHL website as DASC which is completely different from an account holder.
Am sorry about the long list but can you tell me what I can do from here based on the above additional information?
 

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