united-states commerce
If a mailman steals a package, who takes the loss?
<p>If I buy something, say from Amazon, and the mailman steals it, then is it my loss or Amazon's?</p>

<p>In other words, for first class or priority mail, when does the mail piece pass from possession of the seller to the buyer?</p>

<p>I know with commercial shipping it depends on the terms. For example, if you buy something Freight On Board, then the customer takes the loss, but if it is shipped Destination, then the shipper takes the loss. What are the implied shipping terms when buying from an online seller?</p>

<p>Leaving out who the shipper is for a minute, the primary loss would be the seller's (<a href="https://www.law.cornell.edu/ucc/2/2-613">UCC 2-613</a>) in that the loss would be total and the contract would void (so the buyer has not obligation to pay the seller, and the seller's stuff is nevertheless gone). The seller has a remedy against most shippers, so that UPS or Fedex would be liable to covering their loss (assuming buyer has not assume the liability by agreeing to delivery without signature).</p>

<p>However, USPS has special immunity: the government is liable to tort claims, <strong>but</strong> <a href="https://www.law.cornell.edu/uscode/text/28/2680">28 USC 2680(b)</a> states that</p>

<blockquote>
  <p>The provisions of this chapter and section 1346(b) of this title shall
  not apply to... Any claim arising out of the loss, miscarriage, or
  negligent transmission of letters or postal matter</p>
</blockquote>

<p>Thanks to Nate Eldredge for raising the case <a href="https://www.supremecourt.gov/opinions/05pdf/04-848.pdf">Dolan v. USPS 546 U.S. 481 (2006)</a>, where it was held that USPS has very narrowly circumscribed immunity from liability. Under this provision, they are <em>not</em> liable for breaking contents when delivered negligently, but that does not mean that they are not liable for breaking things as a result of their deliveries (they broke Mrs. Dolan, in how they piled stuff on the porch). Although this case does not rule on the meaning of "loss" or "miscarriage", on a plain reading of the terms, theft results in a loss ("loss" is not restricted to "mysterious disappearance"). The court also observes that</p>

<blockquote>
  <p>losses of the type for which immunity is retained under §2680(b) are
  at least to  some  degree  avoidable  or  compensable  through  postal
  registration  and  insurance</p>
</blockquote>

<p>and the court explains that </p>

<blockquote>
  <p>one purpose of the FTCA exceptions was to avoid “extending the
  coverage  of  the  Act  to  suits  for  which  adequate  remedies 
  were  already  available”</p>
</blockquote>

<p>(that is, Congress opened the government to tort liability in just those cases where there were no remedies: but there has long been postal insurance).</p>
