How to act when we receive damaged or poor condition merchandise? Opinion

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The delivery of damaged or poor condition merchandise is one of the most common incidents that importers or recipients have to deal with.

Faced with this type of problem, it is common for recipients or importers to doubt the most effective way to proceed with the appropriate claim, as the feeling of discomfort when verifying that our merchandise is not in optimal conditions can be added to the disappointment of not be able to claim its return or refund for not having acted under the legal requirements.

That is why we propose the following action measures when we receive a damaged merchandise or item and that we order them in the following order of priority.

1st Examine the goods 

It is crucial that the recipient check the condition of the merchandise at the time of receipt, whenever this is possible.

It may be advisable to record a video or make a photographic report of the unsealing and opening of the container, although the value of said evidence can be questioned relatively easily before our courts, which is why if we suspect that the merchandise is in poor condition, we consider requesting the intervention of a notary to issue a report during the opening of the container and unsealing.

2º Raise reservations in writing.

If it is land transport by road, we will make these reservations in accordance with the provisions of article 60.1 of Law 15/2009 on the contract for the land transportation of goods and in the case of international transportation, we will make these reservations in accordance with the provisions of Articles 30.1 CMR agreement.

In the case of apparent damage, which can be detected by a superficial visual inspection of the merchandise, and without the need for it to be unsealed, these reservations must be announced on the same day of delivery and within a maximum of 24 hours from the date of delivery, which is why the reaction capacity of the importer or recipient will be crucial.

“Hidden” damages that are not immediately noticeable must be reported in writing no later than 7 days from receipt.

If it is a maritime transport, we will record these reservations/protests in accordance with the provisions of the Hague-Visby Convention , which establishes a period of 24 hours to report “apparent” damages and a maximum period of 72 hours from receipt for “hidden” damage . 

It is important that these reservations are reliably communicated to the carrier and shipper, identifying the type of damage, the amount of damaged merchandise or affected units, as well as any available evidence, such as photographs or inspection reports. We must bear in mind that if we do not express these reservations or do not identify them correctly, the merchandise will be presumed delivered in perfect condition, and we will no longer be able to demand responsibility from the actual or contractual carrier (usually the freight forwarding company). 

3º It will be advisable to have an expert assessment, a “survey” , carry out an assessment of the damages in order to substantiate our claim and have evidence in a possible judicial procedure, especially when it involves a large quantity of damaged merchandise or where its defect results in a high cost.

4º Presentation of an effective claim, for the value of the affected goods and any other added costs, such as additional transport costs or financial losses derived from delays. 

Although nothing will prevent us from filing a legal claim , our experience recommends us to open a negotiation phase that allows for a “friendly” solution , avoiding judicial waiting times and the emotional and material expenses associated with it.

According to art 79 of Law 15/2009 and art 32 of the CMR agreement, the period for making any judicial action effective in this sense will generally expire in one year from the delivery of the merchandise, although said prescription may be interrupted by a credible claim.

How to assess the damage? 

One of the main peculiarities of transport legislation is embodied in the fact that the carrier’s liability for damage or loss of goods is limited.

That is why to set the value of the claim, a maximum amount must be met depending on the nature of the merchandise and the value declared by the shipper. If the value of the merchandise has not been reflected in the transport documents, we must consider the value depending on the mode and type of transport contracted.

-In this way, for international road transport (CMR) it will be calculated by applying 8.33 SDR x kg (10.24 x kg).

-For national road transport, a value of 1/3 IPREM/Day or (€6.67 x kg) is set.

-In the case of maritime transport, a criterion of 2 SDR x kg (€2.35 x kg or €789.94 per package) is established; For cases where these are not specified in the bill of lading (BL), a container is equivalent to a package.

* SDR =Special drawing right.

We hope that these recommendations will be helpful in establishing basic lines of action, although it will always be advisable to develop an internal protocol for the reception of merchandise that facilitates these actions and allows for a simple and profitable resolution of this type of incident.

Thank Andrei Gabriel Secu for his collaboration and support in the preparation of these lines.

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