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  1. #51

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    You are a good egg, Stringswinger. I like you. Hope you get good karma out of this.

    Don't give up the ship, Vinny.

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    The Jazz Guitar Chord Dictionary
     
  3. #52

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    Quote Originally Posted by vinnyv1k
    Me and one of the most respected members on this forum decided to trade guitars. I live on the west coast and he lives on the east. Both guitars were new top of the line Gibson archtops. Both guitars were expertly packed in factory shipping boxes with the upmost care and fully insured with UPS. Both guitars were received damaged. The guitar I received had a broken pickguard and the bridge moved off center scratching the top (repairable). The guitar I shipped was received with the headstock broke off. Many pictures of both guitars were taken before shipping them. Pictures show both guitars in perfect condition. I filed a insurance claim for the destroyed Gibson with UPS. They have denied the claim insisting that since the box has no visible damage I either sent it broken or the receiver broke the guitar after it was delivered. Since I have many guitars I decided I would be the one to take the financial fall on this but I am out some very serious money. I am not savey in legal matters. Can anyone give me any good advice as how to go to battle with this corporate monster to get the insurance money that I paid for the guitar they destroyed ? UPS is treating me like a criminal and not like the total victim that I am. They are telling me that the preship pictures are meaningles to them as we could have taken them anytime. Any advice I would sincerely appreciate.........Vinny
    n

    Vinny.
    This is a script from a horror movie, you have all of us with you on this ,UPS beware,
    it's heartwarming to hear that several fellow members have offered good advice and
    indeed some free legal help. I feel sure that we all wish you success and a happy
    resolution to this horrendous experience. I suggest many here will refrain from using
    UPS after this. Good luck we are all with you in spirit.

    Best wishes Silverfoxx

  4. #53

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    Vinny, let me be clear firstly: if UPS handled your guitar with care, the head wouldn't have come off. But just out of curiosity: did support the neck and especially the headstock with extra padding like clothes of crumpled newspaper? Or was there room left under the headstock and the bottom of the case?

    Unfortunately I have heard more stories about guitars shipped in their cases that had the headstock come off. Apparently the standard neck-support in a case actually works like a fulcrum point even causing the breaking, if the case falls flat on it's back (if this was the scenario, I am not surprised there's no damage to the packaging). This is even worse if you loosen the stings, as the string tension would provide some counter-force. Without the string-tension, there's surprisingly little force needed to make a headstock come off...... Although as is Jack, I am surprised to hear this happening to a 5-piece maple neck, so apparently it fell down with quite some force!

    Not trying to let UPS off the hook, just trying to reconstruct what might have happened, maybe you can use it to your benefit.

  5. #54
    I had the same issue here in Europe, response of UPS was a) not packaged properly, b) if packaged properly, then it could not have happened during the shipment, since package shows no damage.

    In my experience, while this 'logic' is a chuzpe, it is difficult to challenge legally. What remained at the end was that I decided to never use UPS again, which worked fine so far. Roughly estimated, this has cost UPS much more than to cover the damage - they may make the mistake to see an individual only in his private role, not in a commercial context.

    Good luck with your claim!

  6. #55
    First off a huge THANK YOU to Marc for his expert advice. As far as the headstock I packed it with the factory pillow air bag plus a ton of extra padding in the headstock pocket area of the case. The headstock was far more protected than how Gibson ships them from the factory. Marc thank you for uplifting my spirits also. I need to go to Santa Cruz some day to hear your band and shake you hand bro.

  7. #56

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    Definitely check with your homeowner's policy if you have one, and also, with any credit card you may have used in the transaction. Given that it was a swap, I'm guessing no money changed hands, but it's still another source of insurance.

    I have all of my stuff insured with a musical instrument-specific policy, and that gives me some piece of mind as well.

  8. #57

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    And yeah, that's some bullshit from UPS.

  9. #58

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    Looks like the good karma that you acquired with the donation of the amplifier has come around to you, Vinny, with Stringswinger's intervention. Good to hear.

    Seems there's some good people on this board, taking care of one another. Never mind the cynics, this is not a bad thing.

    Vinny - good luck to you mate, hope it all works out. Stick to it and I'm sure that you'll get a result.

    Best, Mangotango

  10. #59

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    Vinny, I am glad to help. I will be playing this Friday at the Doubletree in Burlingame ( in the lounge) 6-9 PM. That is pretty close to you. Stop by with a guitar and sit in! I play that gig once or twice a month. Joining me in that trio will be Dale Mills on reeds and Carla Kaufman on bass. Dale and Carla are two of the Bay Area's best jazz musicians. I will bring my Acoustic Image/ Raezers Edge combo so you can plug in to my amp. Hope to see you there....

    My regular Monday gig in Santa Cruz will not be happening the next two Mondays as the restaurant (Soif) is closed for a kitchen remodel. We will be back hopefully on the last Monday of this month. We have two gigs on the May calendar at Gayles in Capitola and we are also on the calendar at the Crow's Nest in Santa Cruz on the last Wednesday of this month.

    To everyone on this forum, be careful when shipping guitars. It is a risky business. Buying insurance from a shipper only insures against their negligence, which can be difficult to prove. Having them or one of their agents do the packing, while more expensive, helps. Having multiple insurers also helps, but even with all of that, when something goes wrong, it will be a massive pain in the butt at best. Exercise caution.

    Cheers to all,

    Marc

  11. #60
    Just a FYI to you guitar shippers. UPS is now saying the reason they denied my claim was the shipping box was not filled to the brim with styrofoam popcorn. Marc is right if you do ship via UPS pay the extra scratch and have them pack it for you. We sometimes have lessons hard learned. After my small claims court gig I will send the Tal to Gibson Repair and Restoration. They said they can make it like new again. Lucky it is vintage sunburst so when they refinish the neck they can completely hide the headstock repair with black shading. They said $650-800 + shipping both ways. Being very anal I will need to have the neck completely refinished to hide the break to be happy. Most cats would just glue the headstock back on and be good to go but I am a picky bastard or so says my wife. I appreciate all your kind words and advice everyone !!! UPS said they are shipping me back the guitar today. I will post pics when I get it. Joe took some pics when he got it. Maybe he can post a couple in the meantime. Thanks gents.....Vinny

  12. #61
    Hey Marc I checked out your band on Youtube and you guys are awesome. Love your playing and the sound of your D.
    Your clarinet player is fantastic. Played clarinet as a boy but had my tonsils removed and couldn't play it anymore. I love jazz clarinet. Really great sounding band. Really in the pocket.

  13. #62

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    Vinny, the TF will probably sound and play better after the repair. And be stronger for it.

    Good luck at small claims court and I hope it rules in your favour. Don't give up the ship.

  14. #63

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    My Heritage insurance covers damage in shipping, regardless of whether I packed the guitar properly or not. When I had two guitars damaged Heritage covered the cost of repairs and the loss of value that the damage caused, and paid me with two weeks. I'd never rely on insurance from the shippers.

    Danny W.

  15. #64
    Thank you Jabber ! School of hard knocks Danny. Unfortunately I take people at their word. When I paid UPS for insurance on the guitar I believed they would honor the insurance contract I paid for. I'm just a old fool I reckon. I am a old school kid of a guy. I remember the days when your word and a handshake was a binding contract. The days of being honorable is just a fond memory. I have worked for the same company for decades. This company was once loved by everyone including me. Now I don't dare mention who I work for or I will be flamed to death. Just as bad as UPS. I remember when I was a kid nobody locked their homes or cars and just left the car keys in the ignition and we had no fears of any kind of harm or dishonesty. Today this world is being destroyed by ruthless corporate monsters. At least their are a lot of kind people here at JGF.

  16. #65

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    Vinny,

    Thanks for the kind words about my band, Hot Club Pacific. As you can see, I use my Vintage D'Angelico on gigs! Somehow, I think John D'Angelico approves, wherever he is...

    Cheers,

    Marc

  17. #66
    Marc, Hot Club Pacific is a very polished band. I will make it a point to see you guys and yes I am sure John approves. IMO John & Jimmy are in heaven making archtops for us when we get there. :-) Thanks again Marc for your expert advice on this UPS matter. You were a blessing to me.

  18. #67

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    I'm not questioning Vinny's packing job, but if anyone else is interested here are some packing tips from someone who ships and receives a lot of guitars.
    http://www.archtop.com/ac_shipping.html

  19. #68

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    Not questioning Vinny's packing job either, with the padding he applied the package must have landed flat on it's back with quite a smack, to cause that amount of damage. With a lot more force than just an accidentally tipping over of the package. I suspect throwing it from a truck onto a conveyor belt or something. Hope things turn out well!
    Last edited by Little Jay; 05-08-2015 at 02:02 PM.

  20. #69

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    Vinny: l am inspired by your gentle words your generous spirit and integrity. Remember you can cheat an honest man but you can not make him a fool. No matter what the out come shine on.

  21. #70

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    Quote Originally Posted by KIRKP
    I'm not questioning Vinny's packing job, but if anyone else is interested here are some packing tips from someone who ships and receives a lot of guitars.
    archtop.com: shipping your guitar
    fwiw - I've shipped a few valuable guitars without problems following these tips.

  22. #71
    I just talked to my luthier Frank Ford of frets.com about this. He is also the owner of Gryphon Stringed Instruments. He told me that UPS had broken countless guitars for his business and it was always a nightmare dealing with them and he stopped using them for a carrier years ago because of this. He also agrees with Danny W. as Heritage is the only and best way to go when it comes to insuring guitars.

  23. #72

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    Do the guitars insured by Heritage have to be Heritage or bought from Heritage?

  24. #73

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    Quote Originally Posted by edh
    Do the guitars insured by Heritage have to be Heritage or bought from Heritage?
    No relation to the guitar company:

    Heritage Insurance Service - Insurance for fine musical instruments Insurance

    Danny W.

  25. #74

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    Quote Originally Posted by edh
    Do the guitars insured by Heritage have to be Heritage or bought from Heritage?
    Two separate companies. Heritage insurance website.

    There are other companies specializing in instrument insurance.

  26. #75

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    Outrageous story, good advice and great camaraderie! Kudos to the folks here at JGF and the best of luck to Vinny & Joe.

  27. #76

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    Thanks

  28. #77

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    Lawyer here. Think "procedure" and "merits."

    Procedure: The first thing I would do is contact the UPS claims department, in writing, and tell them you want a copy of their shipping contract governing your transaction and any paperwork relating to dispute resolution of claims. This says to UPS "Huston, we have a problem!" Processing and defending insurance claims costs money and UPS wants to close files by settling. It should open up the dialog again.

    Second, read the contract in the small print - this is VERY worthwhile. I sit down with a highlighter and search closely for any clauses concerning "jurisdiction" and "dispute resolution." Very often contracts have jurisdiction clauses so that the location of where the company has to go to defend a claim isn't far, usually in their backyard. Dispute resolutions clauses often require arbitration, a less expensive form of having a 3rd party decide your case. Often, state law requires the company to pay for arbitrators and that can get expensive.

    Now to the merits:

    Based on the facts you wrote above, you have to prove 5 "elements" to a judge or arbitrator. If 1 element is missing in your presentation, you fail to prove your case:

    1) Contract. You had a contract (easy) with rights and duties on both sides;
    2) Duty. UPS had a duty under the contract to deliver the instruments safely (still easy);
    3) Breach. UPS breached their duty cause the instruments did not arrive safe (still easy);
    4) Causation. The breach by UPS caused the damage; and
    5) Damages. The dollar amount of your loss must be established.

    Your toughest issue will be causation. UPS IS saying if they did breach, they did not cause the damage. Both guitar owners would need to testify to show that the damage occurred while the guitars were in the possession of UPS.

    Another way of looking at it is a "bailment," ie "I gave you my guitar, you had a duty to take care of it, its damaged while in your possession, now pay me this amount of money."

    Lastly, I love pursuing big companies and their insurers when they deny claims solely cause they can. Their hope is to be discouraging to people. That is what UPS is doing. However, they are not gods. Geez, how do you think I paid for my guitars?

    Good luck!

  29. #78
    Greg, I would be surprised if the duty and breach elements are that 'easy' under US contract law. In Europe, UPS would agree in their T&Cs to owe a certain care when executing a process, but does not commit that they 'deliver the instruments safely'. The way you put it, the causation test, which connects breach and damage, reads like this: the breach (="instrument did not arrive safely") caused the damage (="instrument is damaged"), which is a bit confusing.

    Claims like this unfortunately commonly do require proof that UPS breached their duty of taking proper care in handling the parcel, which caused the damage. The standard of contractually owed care will, in this context, quite likely be derived from standard business practices of handling packages that do not contain fragile instruments, which makes proof of breach possibly difficult. If UPS had handled the parcel compliant with such standards, then they would not have breached their duty, and no liability would arise, despite the fact that the damage might have happened while the guitar was in their possession. Causation plays no role in this case. Conversely, if breach of duty to handle the parcel properly can be established, then causation issues may be relevant, as UPS could argue that the guitar was already damaged when they received the parcel, or that the damage might have happened even if they had handled the parcel properly (e.g. because the guitar was packaged faultily). All in all a rather unpleasant situation for the claimant.

    Two more remarks:

    In Europe, consumers can claim mandatory jurisdiction for small claims where they are a resident. Do you have a similar principle in the US?

    In some parts of the world there may be a separate insurance contract with an insurance company that is distinct from UPS. Not sure how this is in the US, but if so, then the claim might needed to be brought against or include the insurer.

    update: Extract from UPS's T&Cs

    Clause 2: "To enable transit times to be kept short and transportation prices to be kept low as desired by the shipper, shipments will be transported as consolidated shipments. In selecting the type of carriage, the shipper accepts that in view of this mass carriage it is not possible to guarantee the same care as with individual carriage." This means a less strict duty of careful handling is owed. In practice, quite likely, with that we all accept UPS staff throwing around our parcels or load 100 parcels over them.

    Clause 2: "The shipper should, taking into consideration the kind and value of his goods, select the transportation as a declared value package by declaring a value and paying the surcharge as stipulated in the UPS Service and Tariff Guide. Declared value packages will be transported with more security and control measurements." - was this a declared value transport? If so, claimant could ask for disclosure which specific additional security and control measures were put in place.

    Clause 9: "Where the International Air Conventions or CMR or any national mandatory laws apply, the liability of UPS is governed by and will be limited according to the applicable rules." - if it happened on a flight, those limitations might be significant.

    All of the above may be impacted by specific insuance T&Cs, if extra insurance has been taken out.
    Last edited by Phil in London; 05-09-2015 at 07:56 AM.

  30. #79

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    Quote Originally Posted by Stringswinger
    Vinny,

    Thanks for the kind words about my band, Hot Club Pacific. As you can see, I use my Vintage D'Angelico on gigs! Somehow, I think John D'Angelico approves, wherever he is...

    Cheers,

    Marc
    Just checked your band's televised performance of "Swing 42." Good stuff! Beautiful guitar you have there, and you sure know what to do with it. I've always loved Django's music--never fails to bring a smile to my face.

  31. #80

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    Quote Originally Posted by GregErnstMusic
    Lawyer here. Think "procedure" and "merits."
    I enjoyed this explanation / presentation. Thank you for sharing your expertise.

  32. #81

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    I do not think that UPS will be able to dodge a small claims Court jurisdiction if they have some fine print in their terms and conditions calling for jurisdiction to be in some County in Delaware (presuming that they are incorporated there). Such a clause is a "contract of adhesion" and is unenforceable.

    Many unenforceable clauses are put in contracts, often with full knowledge of its unenforceability by the company who drafted the contract. The reason they leave these clauses in is that those who are ignorant of the law often give up their rights thinking that the clause is enforceable.

    At this point Vinny should not discuss the particulars of his case here, as some UPS agent may find this thread and use any admissions against him.

    If he properly serves UPS and the UPS Store that shipped the parcel, there is a good chance that they will settle this case with him. If they do not and Vinny presents his case well, he has a good chance of getting some relief from a small Claims judge.

  33. #82
    Quote Originally Posted by Stringswinger
    I do not think that UPS will be able to dodge a small claims Court jurisdiction if they have some fine print in their terms and conditions calling for jurisdiction to be in some County in Delaware (presuming that they are incorporated there). Such a clause is a "contract of adhesion" and is unenforceable.
    Agree, same position here.

  34. #83

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    Love to ya Vinny, good luck with those bums.

  35. #84

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    These pictures hurt...ouch
    I feel for You, Joe and of course that nice TF (my dream guitar...)
    Best success with your claim!!

  36. #85

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    Vinny: Not making light of your dilemma . . but, that has got to be one of the easiest head stock repairs I've ever seem. I'll go out on a limb here and say that even without a neck refin . . . it would barely be detectable. Having the entire neck refinished, the repair will be virtually undetectable, except under a black light inspection. While I'm sure you're not going the full route to achieve a perfect and undetectable repear for the purposes of hoping to sell it without full disclosure . . . the lack of having your own naked eye see it while you play it will be very comforting to you. In your mind, you'll still know it there, under the new finish. But, after a while, not only will you not notice it . . but you really won't care either. It'll become a non issue for a wonderful guitar.

  37. #86
    You are right Patrick. I am anal so I need it to look perfect. Also their is a lacquer fracture from the 13th to the 17th fret so I am just going to get the whole neck refinished. The guitar is in brand condition otherwise.

  38. #87

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    Those pics should have a "viewers of a sensitive nature, look away now" warning.

    VinnyV, I'm sure Gibson will make a great job of the repair. If you decide to keep the guitar after the job is done, it might even make you more fond of the guitar. The headstock join will probably be stronger than it was before the repair.

    A gigging instrument, maybe ?

  39. #88

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    Just thinking about this,

    Would it make sense, when shipping a guitar, that the "This Way Up" markings on the carton be marked so that the body/headstock direction is horizontal, parallel to the floor, rather than vertical.

  40. #89

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    no, you want the guitar shipped vertically.
    someone slapping the box down horizontally is probably how it broke in the first place

  41. #90

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    Quote Originally Posted by wintermoon
    no, you want the guitar shipped vertically.
    someone slapping the box down horizontally is probably how it broke in the first place
    While what you say is undoubtedly true . . I must believe that the crew packing the guitar in each different truck at each UPS facility transfer would be oblivious to any such signs and pack it in such a way that was conducive to taking as little space as possible.

    I also use arrows, but each of the 4 arrows on each of the 4 side panels of the carton are pointed up towards the head stock . . indicating verticle. My hope is that those arrows, along with the fragile signs will at least cause the handlers to take precaution . . however they decide to pack it it in the truck. These days, that's all you can really hope for.

  42. #91

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    Quote Originally Posted by Patrick2
    While what you say is undoubtedly true . . I must believe that the crew packing the guitar in each different truck at each UPS facility transfer would be oblivious to any such signs and pack it in such a way that was conducive to taking as little space as possible.
    That is why sending a guitar overnight is the safest method if it needs to be shipped at all. The number of transfers is minimized and no third-party contractors are involved.

  43. #92
    Yes puby my poor little broken winged sparrow may very well make me love her even more after she comes back from the hospital. I am very thankful for all the incouraging words from everyone. I really do believe now that I must go to battle not just for me but for everyone here also.

  44. #93
    All I can say is when it left my house the shipping box didn't have a mark on it. It came back to me looking like it returned from the front lines of WW11. The box seams are all taped together with red tape and the damage labels are all scuffed up with some of them peeling off. Also you can tell the cardboard got very wet at some point of it's journeys.

  45. #94

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    Common carrier strict liability--at least in Calif.

    I am admitted in NY, and not California, but a few minutes of research found the following provision:

    Cal. Civil Code, Section 2194:

    "Unless the consignor accompanies the freight and retains exclusive control thereof, an inland common carrier is liable for the loss or injury....from any cause except 1. inherent defect, 2. act of a public enemy, 3. act of the law, or 4. any "irresistible superhuman cause".

    UPS is undoubtedly a common carrier. The consignor (person depositing the item with UPS) did not make the journey with the guitar, so this UPS exculpation is not available to them. The exceptions to strict liability do not apply: 1. Tal Farlow guitars are shipped everyday without incident--thus there is no inherent design defect, 2. there is no "public enemy" involved (neither ISIS nor any rapper was involved in this incident---this is a joke, folks), 3. there is no "act of the law"--no condemnation nor public seizure by a governmental official, nor 4. any "irresistible superhuman cause" ---neither Superman, nor Jor-El---his Kryptonite father, nor Johnny Smith (whose guitar playing I find to be not quite human) was involved here.

    Now there is one fly in the ointment here. The Calif. statute may not apply--though the statute is designed to protect the recipients of items shipped to Calif., so this question is not so clearcut. UPS assuredly does plenty of business in California, so there is no question of exercising jurisdiction over them.

    Even if the Calif. strict liability statute does not apply, the legal status of "bailee for hire" and "common carrier" is well-settled. I could not tell from this forum discussion where the shipment originated. I would not be surprised to find a similar strict liability statute in the state of shipping origin, as well. That should be looked into---if there is also strict liability in that state, then UPS will not be able to muddy the waters, legally, with a choice of law argument.

  46. #95

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    Quote Originally Posted by Stringswinger
    At this point Vinny should not discuss the particulars of his case here, as some UPS agent may find this thread and use any admissions against him.
    Excellent advise for Vinny; everyone else (who isn't a lawyer) can help by not inquiring about or further commenting on the specific details of the shipment. I'm sure Vinny will update us when it's appropriate.

    Thank you to the lawyers who have contributed, hopefully I will never need your research and advice but I bookmarked just in case.
    Last edited by MaxTwang; 05-10-2015 at 08:00 PM.

  47. #96

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    Quote Originally Posted by goldenwave77
    UPS is undoubtedly a common carrier. The consignor (person depositing the item with UPS) did not make the journey with the guitar, so this UPS exculpation is not available to them. The exceptions to strict liability do not apply: 1. Tal Farlow guitars are shipped everyday without incident--thus there is no inherent design defect, 2. there is no "public enemy" involved (neither ISIS nor any rapper was involved in this incident---this is a joke, folks), 3. there is no "act of the law"--no condemnation nor public seizure by a governmental official, nor 4. any "irresistible superhuman cause" ---neither Superman, nor Jor-El---his Kryptonite father, nor Johnny Smith (whose guitar playing I find to be not quite human) was involved here.
    LMFAO!!!!!!

    That at added so much color to an otherwise black-and-white legal document!

  48. #97

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    As someone whose been fortunate to ship over 100 guitars, I'd always recommend shipping 2 day air. It's basic air freight without the cost of overnight. If you create your own account at UPS or FedEX the charge for 2 day air will be $100 more than ground, without the pitfalls of ground freight. That's not to say air freight is excluded from issues too, but the odds of a failsafe delivery are more in your favor.

    I feel very sorry for my brothers Vinny and Joe. I hope that this ends with a happy ending. Best wishes!

  49. #98

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    Hey 2b, thank for the solid advice. If I ever ship a guitar again, I'll insist on 2day.
    thank you brother. Joe D

  50. #99

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    Quote Originally Posted by Joe DeNisco
    Hey 2b, thank for the solid advice. If I ever ship a guitar again, I'll insist on 2day.
    thank you brother. Joe D
    Anytime. First step is to create your own account. Creating your account is free. Takes about 10 minutes to set up, and once you've been issued an ID you're ready to ship. The advantages of one having their own account is substantial savings on shipping charges. You ship a guitar a month, or once every few years, makes no matter. The mom and pop centers are in business so naturally using them your shipping costs are 2 and 3 times that of shipping yourself. One can generate their own shipping labels on line...takes less than 5 minutes to fill out and create the on-line shipping invoice. All one needs is a computer and a printer. I prefer FedEx over UPS...I began this shipping racket shipping used high end audio gear (read expensive) in the 90's, so naturally a few years ago when I migrated to archtops I chose to remain with the service that has always worked for me in the past. Your mileage may vary. Best wishes!

  51. #100

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    Quote Originally Posted by 2bornot2bop
    As someone whose been fortunate to ship over 100 guitars, I'd always recommend shipping 2 day air. It's basic air freight without the cost of overnight. If you create your own account at UPS or FedEX the charge for 2 day air will be $100 more than ground, without the pitfalls of ground freight. That's not to say air freight is excluded from issues too, but the odds of a failsafe delivery are more in your favor.

    I feel very sorry for my brothers Vinny and Joe. I hope that this ends with a happy ending. Best wishes!
    As I've mentioned earlier, this has the added advantage of proper company staff handling your goods as opposed to third-party contractors handling them. Of course, overnight is still safer simply due to the reduced number of transits, but, naturally, that comes at a cost.