Amarilloan files lawsuit when tusks fail to measure up


Plaintiff could settle the case out of court

By JIM McBRIDE
jim.mcbride@amarillo.com
Amarillo Globe-News

An Amarillo man is suing a Michigan man and a South African hunting guide in a contract dispute concerning an elephant hunt.
J.A. Whittenburg III filed the federal civil suit Jan. 14 in Amarillo's U.S. District Court against Big Game Safaris, Jim Hebert and Hugo Ras, a resident of Potchetstboom, South Africa.

The suit, however, could be headed for settlement or dismissal because the plaintiff's attorney has asked the court to withhold issuance of legal notice of the suit to the defendants.

The suit claims the safari group, Hebert and Ras breached a contract with Whittenburg that guaranteed the opportunity to hunt a particular elephant in South Africa. The contract guaranteed that the elephant's tusks would weigh at least 100 pounds apiece, the suit claims.

According to the suit:

The plaintiff was solicited to make a $50,000 down payment for the hunt because other parties were interested in hunting the elephant.

Whittenburg organized a much larger family hunt and traveled with family members to South Africa. After the successful hunt, the elephant was examined, but the plaintiff claims the elephant's tusks were much smaller than represented and appeared to have five or six inches chipped or severed off from their tips.

Before leaving South Africa, the plaintiff made a "considerable" payment to Ras by wire transfer for hunting, lodging, helicopter and aircraft charters, tips and other costs.

"They (funds) were sent because plaintiff and his family had taken a significant number of plains game and other trophies and Mr. Ras was adamant the ivory would weigh 100 pounds or more despite appearances," the suit says.

But five days later, Whittenburg learned that the ivory still had not been weighed. Ras later provided a $30,000 check to Whittenburg for an adjustment, but a stop payment order had been issued when the check was presented for payment at Ras' bank in Laredo.

The suit alleges the defendants misrepresented the big game hunt and breached a contract with Whittenburg.

The suit seeks unspecified damages, and further claims the defendants have held the plaintiff's trophies hostage and have refused to deliver them.

The Globe-News was unable to reach Ras or Hebert for comment on the suit.

quote:

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Originally posted by Kathi:
After the successful hunt, the elephant was examined, but the plaintiff claims the elephant's tusks were much smaller than represented and appeared to have five or six inches chipped or severed off from their tips.

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Uh, who pulled the trigger? Did he LOOK at the elephant (tusks) before shooting?

"After examining, they were smaller than 'represented'"? What's that mean?? Did he not judge them to be worthy before shooting?

Were they "chipped" from use, or is this an after-the-fact thing? Does he have pictures of the "unaltered" tusks?

Sounds like someone who got greedy, forked over a bunch of cash, made a bad decision, and is now regretting it.

If the tusks didn't measure up, maybe he should've held his fire.

Another example of money getting in the way of good hunting. Too many people have egos that can only be soothed by trying to buy their way into anything they desire....

Poor fellow.





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I think a fair settlement would be a $1000/inch when a PH claims a buffalo is 40" but is 37" when it hits the ground!

I think that the plaintiff is a spoiled SOB who needs to have the dog crap kicked out of him.

My opinion only.......

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quote:

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Originally posted by allen day:
I think that the plaintiff is a spoiled SOB who needs to have the dog crap kicked out of him.

My opinion only.......

AD

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And a good opinion it is. LOL.
Next case on the docket? ...
What does JudgeG think of the merits of this case?

Undoubtedly the plaintiff is a brat who is interested in bragging rights of a 100 pounder rather than an enjoyable hunt for himself and his family.

BUT, if the outfitter GUARANTEED a 100 pound elephant, and the client paid a higher price for the safari because he was guaranteed a 100 pounder, then the outfitter breached the contract.

Most outfitters are responsible enough to describe the animals that are likely to be found on safari, but not to outright guarantee anything. Even on a canned hunt, a guarantee would be difficult. What if the client cannot walk? What if he cannot hit his target?

This situation represents the dark side of trophy hunting. There is a certain class of big game hunter who pays to hunt the jumbos. Sometimes it’s for their name in lights, sometimes it for ego gratification, and sometimes it just because they can afford to do it and only want the best. When outfitters charge for specific performance and when clients pay for specific performance, there better be good communication between the client and PH - and a lot of paperwork to back it up and plan for contingencies.

I do not look at the client as a brat. He entered into an agreement and expected the terms of the agreement to be upheld. I know of one other PH who encountered a similar mess when the client. The client cut short a 21 day elephant hunt to 7 days and demanded a 75 + tusker. He was not paying a premium between 60 to 80 pounds.

On the 7th day, a large elephant appeared, the PH said its large but I cannot guarantee it’s 75 pounds. Boom, elephant down, client happy, tusks off, client still happy, tusks arrive to client's home and weigh 68 +/-. Client is furious and then proceeds to trash PH’s reputation with any and everyone.

I view this situation as the client must shoulder a lot of the burden for this mess. If he did not properly document the “what if’sâ€, then he made a bad deal. If he did properly document the “what if’s and the PH did not honor the contract, then this is a simple court case and the client will most like prevail. Wether he gets his money back is another story....

Given that the weight of a tusk can be dramatically affected by the size of the conical nerve in it and that cannot be determined until the tusks are removed, I don't see why anyone could guarantee weight.

There's a piece of information missing here.....what was the actual weight of the tusks?....60 pounds????? 75 pounds????? or was they close.....say 95 pounds?

IMO there's two stupid folks here.....one willing to write the contract and one willing to pay for it!!!

I'm going to pass on any judgements involving the parties. Looks like plenty of blame to go around.

But i can say that some one who has seen a lot more elephants than I ever will would need to "judge" the toothiness. How many hunters rely upon the PH to "judge" for them? My wife tells me that I have a very skewed sense of length anyway!!
Mike

I don't see any heroes to this story. An outfitter is only setting himself up for trouble by guaranteeing an animal of a certain size unless he has it tranquilized and in a pen. Any hunter should know that he is buying a hunt not an animal. Stopping payment on the check seems to be very poor form as well. Maybe these two deserved each other.

If a pro hunter makes a written gurantee of a 100 lbs. per side, gets an extravagant trophy fee for it. It is HIS responsibility to deliver the goods not the client. Rarely will a client have the oppertunity to see much less shoot a 100 pounder.

404 - You got that right. Unless this thing was someone's pet, there are not too many 100 pounders wandering the planet today. IF the PH was advertising this ele as 100 pounds, then he would have had to be very confident it was in this class. Also, the client should have been savvy enough to recognize the ivory could be 10% on ether side of that field estimate - and most likely on the lower side.

Have been in the buss a long time and one of the persons named... well; well it does not surprise me at all!
If you want to put your short and curlies on the block well some one is going to get hurt.
Client or Outfitter

I have one brief sentence to cover the sad saga ...

If a hunter states he wants a X size trophy OR conversly an outfitter says he will guarantee a certain size trophy THEN I have no sympathy with either party as that is not hunting that is SUPERMARKET SHOPPING ...

If the cap fits wear it

Peter

Now the frevolous law suit industry is ambulance chasing our industry, I still feel like our thing is sacred and should be immune to such dribble....To start with guarentees are for fools and at that point it is no longer hunting...I would much prefer a slap from a glove and pistols at daybreak to this crap. It sounds like to me that two fools met.

Kathi:
Do you know how to find Hugo Ras or Jim Hebert?
Carol

There would probably be no lawsuit if the outfitter hadn't stopped payment on the $30,000 check. It sounds like he is a scumbag and a swindler.

George

What we have here is a case of two imbeciles made for each other.

so, Allen , if you were sold a pre-64 model 70 375 H&H Super Grade in Mint condition for $4000.00 and were delivered a Classic African express valued at about $900.00 you would not cry foul? If challenging the sale began a law suit, would you consider yourself a spoiled self-indulgent brat that ought to have the shit kicked out of you?? If you are stupid enough to make a gurantee and charge a price for that gurantee, why would you cry if held to that gurantee??

quote:

Originally posted by allen day:
I think that the plaintiff is a spoiled SOB who needs to have the dog crap kicked out of him.

My opinion only.......

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Alf,

While I am a citizen of what I think is the greatest country in the world, I am also a citizen in a country where some nimrod eats at McDonalds all the time, gets fat, then sues. Plaintiffs lawyers and frivolous lawsuits are the bain of our beloved country.

I've met Hebert on a couple occassions but don't really know him. I recall about 6-7 years ago he was involved in some kind of clash with SCI over ethics and believe he was banned from the organization for awhile. He was also involved with a resort/elk hunting property (fenced) called "Garland" in northern Michigan that is now defunct. Last time I spoke with him he was promoting his safari booking business at one of the "Outdoorama" shows.

same thing when a PH says that kudu bull will go 57" and it is only 50" on the ground, shouldn't that PH be held to pay the trophy fee?

quote:

Originally posted by ALF:

Looks like if you deal with anyone out of the USA on any level you need a lawyer present to make sure you are not setting yourself up for a potential lawsuit

Alf,
I take umbrage at that statement. I don't like the climate of suing at the drop of a hat, but if someone enters into a contract, and does not adhere to the terms of that contract, he is in breach of that contract. The first step is to try to work things out without resorting to the courts.

According to the 'facts' as presented here, the outfitter contracted to get the client an elephant with 100lb. tusks. The outfitter was paid the full amount per the contract, yet did not deliver per his contractual obligations. He compounded the problem by stopping payment on the agreed-upon adjustment.
So the outfitter may noot only be a 'liar', he may be a fraud as well (stopping payment on a check like that would constitute 'passing a bad check' in these parts). IMO, this is anything but a frivolous lawsuit; we have someone getting soaked for a lot of money without the benefit of receiving the 'goods' he paid for.

Should the client just take it in the neck, leaving the outfitter to pull the stunt on someone else? Should he fly to Africa and institute criminal proceedings? Should he fly to Africa and kill the outfitter?

What would you do if you got screwed like this?

George

It should be apparent to anyone in the hunting business that there is no way to tell what a tusk weighs on the animal. They all have the hollow nerve which varies greatly from elephant to elephant and effects the weight.

All too true, Mike. That doesn't change the 'fact' that the outfitter allegedly made certain guarantees which were not fulfilled.

Wouldn't you LOVE to get a look at that agreement?

As distasteful as it may be some to book hunts on this basis, there are a lot of outfits in Africa, North America, and elsewhere, that guarantee certain trophy quality levels.

There are several white-tailed deer, and elk operations that have tiered hunting.

In Europe, it is standard practice to book hunts for animals of representative, bronze, silver, or gold medal class, with the trophy fees rising dramatically. You must shoot the animal your guide tells you to shoot. In some countries, if he errs on the high side, you must pay the higher medal fee.

George

Ballbuster, if the trophy fee is based on inches damn right it is his responsibility! How many hunters from the states or elsewhere can properly judge the trophy size of a Kudu or Eland etc.

I'm curious if anyone knows what the tusks actually weighed?

Doesn't change my opinion,just curious.

Lord I hate this legal shit, I'd rather just shoot it out and let the winner buy beer.....

Guarentees and contracts are only as good as the persons word, the rest is BS....

Good point Ray ,about contracts


Sean

quote:

Originally posted by Atkinson:

Guarentees and contracts are only as good as the persons word, the rest is BS....

This statement is especially true of contracts with safari companies. Choose a good safari company, and you don't need a contract. Choose one of the (few) bad apples, and a contract written by William Rhenquist himself is not going to save you.

I thought there were no free roaming eles in S Africa with the exception of Kruger...Was the helicopter used to find the ele???


Mike

Alf,

Bullshit. You cannot embrace capitalism when it suits you and them claim "well, that's hunting" when it doesn't. This isn't the political forum I know, but I think the strong opinions on this subject are evidence of the incongruous intersection of hunting and capitalism. Hunting is a very personal and emotional thing for everyone on this board but the market mechanism by which hunting is sustained is neither. Money is a very cold intermediary between men and beasts.

JMHO,

JohnTheGreek

Contract? Who cares?

I really don't know who was stupider in this instance, the outfitter who guaranteed the hundred pounder or the moron who booked the hunt on that basis.

No, I take that back. The hunter was stupider. The outfitter was, at best, shall we say, maybe, dishonest? But pretty damned stupid too, since he apparently thought he would get away with it.

As I said, two imbeciles made for each other.

I actually kind of enjoy it when these kinds of dimwits get into a hissy fit with each other.

Nobody wins and they come off looking like the idiots they are: a nice little object lesson.

If this thing goes to court the only winners will be the ATTORNEYS

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quote:

Originally posted by ALF:

As to the USA being a litigious society, more so than any other country in the world.

You better take that back before someone sues you.

If anyone cares ,I think John the Greek opines well.Many despise the type of "hunt",the ethics and what some hunting has become- supermarket style harvesting for hefty fees.
That is not the point though.If a person (mis)represents in no vague terms what he is selling- and selling he is,let there be no doubt about that aspect,than he has to perform to the letter.
Therefore the Ph really wasnt selling a hunt,he was selling a particular animal that he didnt deliver.He is also the expert to judge the feasibility,not the lay-hunter.

SO- nevermind that most here abhor buying game -(or women?),it is done.
Yes the buyer seems stupid or uneducated in many aspects,but hell ,he got the money to be able to afford his stupidity- he hired himself an expert.
To view this from the proper aspect,lets not confuse this story with a hunt.

Yes the hired expert is and should be held accountable for all his misrepresentations and greed.The law- is supposed to protect the stupid and weak from the unscrupulous .Unfortunately in todays world the spoils go to the attorneys who manage to interpret and complicate everything.

Alf,

I dont think your whole post was bullshit. Make no mistake, I totally agree with you that the above described "hunt" was less than ethical. I do, however, have an issue with you implying that this scenario is a result of the litigious nature of Americans (or anyone else) under the circumstances. Hunting has, for better or worse, been transformed into a business and capitalism is a set of juridical relations not moral ones. It should, therefore, come as no surprise that animals are bought and sold in such a way or that contract disputes arise when exchanges invariably go bad. I do not fault the injured party here for suing the outfitter but I do find it distasteful that such an undoubtedly grand animal was, by purchaser AND seller, first reduced to livestock and then to something as hollow as the disputed element of a contract.

What really gets me, and I am speaking broadly here, is that for years I have been listening to people defend and benefit from certain hunting practices due to the fact that they are legal (as though legality and morality necessarily intersect). These same individuals then act surprised and annoyed when our sport is defiled by a "frivolous lawsuit" relating to those practices. This just goes to reinforce my position that, under capitalism, "no man opposes freedom, he opposes at most the freedom of others." People who embrace the market when it suits them and then cry "foul!" when the legal powers propping up the market mechanism turn against them should be stinghaltered and gilflurted.

JMHO,

JohnTheGreek