1. Definitions. (a). "Carrier" refers to the Carrier identified on the air waybill or other transportation documentation, all those providing services as identified in section 8, below, all vessels, vehicles, aircraft and other conveyances used to perform transportation services hereunder, and the respective owners,
employees and agents of each of the foregoing.
(b). "Shipper" refers to the entity engaging Carrier with respect to the goods and, unless the context herein clearly indicates to the contrary, Shipper shall include the owner, consignee and all others who may have right of claim by, through or with respect to the goods, all of whom shall be jointly and severally liable for performance hereunder. Shipper expressly warrants that it has authority to bind each of the foregoing to the terms and conditions set forth herein.
(c). "Goods" refers to those items with respect to which Carrier has been requested to or does perform services hereunder, including all packing and packaging as well as all other items or materials associated with such goods, including, without limitation, all wrappings, boxes, crates, cradles, pallets and containers.
(d). "Consignee" refers to the entity identified to receive the goods.
(e). "Montreal Convention" refers to the Convention For The Unification Of Certain Rules Relating To International Carriage By Air, signed at Montreal, 28 May 1999, including any Protocols thereto ratified by the United States.
2. Basic Agreement. In tendering goods to Carrier, Shipper agrees to the terms and conditions set forth herein as well as such additional terms and conditions set forth in Carrier's tariff. If Carrier should complete the air waybill and/or execute it on the behalf of Shipper and/or Consignee, then Carrier shall be deemed to have done so at the request and on behalf of Shipper and/or Consignee, as applicable. The face of the air waybill shall identify the places of departure and destination as well as all agreed upon stopping places, provided that Carrier is authorized to alter or add additional places/stops as needed. Shipper warrants the accuracy and completeness of all instructions and particulars relating to the goods, including their nature, description, special characteristics, marks, number, weight, volume and quantity, upon all of which Carrier shall be entitled to rely. Shipper shall reimburse Carrier for any loss or expense (including legal fees and other expenses) resulting from insufficient, inaccurate and/or incomplete instructions and/or particulars relating to the goods. The goods are received by Carrier in apparent good order (unless noted otherwise on the face of the air waybill or other accompanying transportation documentation) for the intended carriage. Carrier shall have the right to refuse carriage of goods at any time if it deems the goods and/or intended carriage are in any way dangerous, likely to cause harm or otherwise inappropriate. Carrier shall have the
right to re-weigh and/or inspect goods at any time for any reason.
3. Freight, Charges and Payment. (a). Freight. Freight, including all charges assessed pursuant to the transportation agreement to which these Terms and Conditions are attached or, if not identified therein, pursuant to Carrier's tariff, shall be based upon instructions or particulars furnished by Shipper but may be recalculated if the instructions or particulars are inaccurate and/or incomplete.
(b). Charges. Charges shall be as set forth in the applicable transportation agreement or, if not identified therein, pursuant to Carrier's tariff. All other charges, dues, taxes, duties, fines, penalties applicable to the goods, all advances made by Carrier, all additional expenses incurred by Carrier by virtue of Shipper's actions, omissions or failure to comply with its obligations herein, and all expenses incurred as a result of any unforeseen or extraordinary circumstances shall be for the account of Shipper.
(c). Payment. Freight and all charges shall be fully earned upon tender of the goods by Shipper and shall be due and payable as set forth in the applicable transportation agreement or, if not identified therein, pursuant to Carrier's tariff. All sums shall be paid in US dollars without deduction or offset. Sums which are due but which have not been paid shall accrue interest at the rate of one percent (1%) per month (or the highest rate allowed by law) from date due until paid in full. Shipper, including all entities identified in the definition of that term, shall be jointly and severally liable for the payment of all sums due Carrier.
(d). Lien. Carrier shall have a lien upon the goods which shall survive delivery to secure payment of all sums due Carrier. Further, Shipper grants Carrier a consensual lien upon all Shipper's personal property subsequently in the possession of Carrier to secure payment of said sums. Carrier shall be entitled to assert such lien rights at any time, including withholding delivery until payment is made and/or holding public or private sale of personal property; sale proceeds shall be first applied to all costs of sale, then to sums due Carrier, with the balance to be paid to Shipper.
4. Special and/or Hazardous Goods. Shipper must identify to Carrier in writing and prior toshipment all goods requiring specialized handling and/or which are dangerous or hazardous incharacter, and Carrier must specifically assent to the carriage of such goods. If accepted by Carrier,Shipper shall provide complete and accurate handling instructions, including all relevant safetyprocedures, shall provide all documentation, and shall otherwise comply with all laws and regulations applicable to such goods. If the special, dangerous and/or hazardous character of such goods creates risk of harm to person or property or makes the continued carriage impractical, Carrier shall, at Shipper's sole risk and expense, discharge, store and/or dispose of such goods.
5. Routes, Modes and Methods, Etc. Carrier shall use reasonable dispatch and due diligence to complete carriage hereunder, but does not guarantee any particular departure, arrival or connection times or dates, and shall have liberty with respect to selection of conveyances, routes, procedures modes, and methods of carriage.
6. Hindrances. Carrier shall not be liable for delay, inability to perform or failure to perform caused by events beyond its direct and reasonable control. In the event such hindrances occur, Carrier shall, if feasible, notify Shipper for instructions with respect to the goods or, if insufficient time exists and/or instructions are not provided, shall, at Shipper's risk and expense, store and/or dispose of the goods as appears reasonable. Upon occurrence of any hindrance, either party may terminate the transportation agreement.
7. Tender and Delivery. Unless otherwise set forth in the applicable transportation agreement, Shipper shall tender the goods to Carrier at the airport identified in good order and condition, packaged, protected, packed, stowed and/or shored sufficiently to withstand the rigors of the contemplated transportation services. Unless otherwise set forth in the applicable transportation agreement, the goods shall be deemed delivered to Consignee at the destination airport upon notification to Consignee of their arrival, with Consignee obligated to receive and take the goods as promptly as they can be discharged and with such discharge to be at Shipper's sole risk and expense. Goods which have been received and taken by Consignee, which have been tendered to Consignee by notification but have either been refused or not promptly received or taken by Consignee, which have been taken or seized by governmental authorities or under legal process, or which cannot be delivered because of Shipper's fault or neglect or inaccuracy or inadequacy of instructions or for other reasons beyond Carrier's control, shall be deemed to have been fully
delivered with Carrier's responsibility with respect to such goods to thereupon cease. Any actions taken by Carrier with respect to the goods after delivery shall be deemed performed solely as agent for Shipper and shall be at Shipper's sole risk and expense.
8. Subcontracting. Carrier shall be entitled to subcontract all or any portion of the transportation services hereunder. This agreement, including all benefits, defenses, exceptions, immunities and limitations upon liability set forth herein, shall apply whenever claim is made against Carrier and/or any carrier, servant, agent, contractor or any other whose services have been used to perform the transportation services. All claims arising out of and/or involving the goods or their transportation hereunder shall be subject to this agreement and commenced and maintained as set forth herein.
9. Customs and Documentation. Shipper shall furnish and attach to the air waybill or other accompanying transportation documentation all such information and documentation necessary to meet the requirements of foreign law and/or customs, and shall comply with all laws and regulations of any country to, from, through or over which the goods may be carried, including those relating to packaging, carriage and/or delivery. Carrier shall not be liable for loss, damage or expense occasioned by the absence, irregularity or insufficiency of any such information or documentation.
10. Montreal Convention. If the carriage involves a destination or stop(s) in a country other than the United States, the Montreal Convention may be applicable. The Montreal Convention governs, and in most cases limits the liability of carriers with respect to, loss, damage or delay to cargoes unless a higher value is declared in advance by Shipper and a supplementary charge is paid (if required). If the Montreal Convention is applicable, then it shall be deemed fully incorporated herein and shall override any conflicting provision hereof to the extent of such conflict but no more, and only for that portion of the carriage service as to which the Montreal Convention applies.
11. Liability. Carrier's liability with respect to the goods, Shipper and/or any other party claiming with respect to the goods, and whether for loss, damage, delay, shortage, misdelivery, failure to deliver or otherwise, shall be only as follows:
(a). Exceptions. Carrier shall not be liable for loss, damage, delay, shortage, misdelivery, failure to deliver or other result caused by: acts of God; perils of the air; public enemies; acts of terrorism; acts of war; public authorities acting with actual or apparent authority; fire (unless caused by the actual fault or privity of Carrier); quarantines; acts or omissions of Shipper and/or the owner of the goods, including their agents or representatives; strikes; lockouts or other labor disputes; sabotage; riots and civil commotions; wastage in bulk or weight or arising from the nature of the goods; inherent vice; improper or insufficient packing, securing, packaging, marking or addressing; latent defect not discoverable by due diligence; compliance with instructions from Shipper; goods loaded by Shipper into sealed containers or other packages, provided the seal remains unbroken and the container or other package is not physically damaged; errors in aircraft piloting, handling or navigation; and/or any other cause arising without the actual fault and privity of Carrier.
(b). Consequential Damages. Carrier shall not be liable for any consequential or special damages of any type or nature whatsoever and howsoever arising, whether Carrier had or should have had knowledge such damages might be incurred, including without limitation loss of profits, income, business opportunities and ability to use undamaged component or system parts.
(c). Limitation of Liability; Higher Value. Carrier's liability with respect to the goods, whether for loss, damage, delay, shortage, misdelivery, failure to deliver or otherwise, shall be the lesser of the actual cost to repair, replace and/or deliver the goods or fifty cents ($0.50) per pound actual weight of the lost, damaged, etc. goods, with a minimum liability of fifty dollars ($50.00) for any given shipment, unless Shipper has declared to Carrier in writing a higher value for the goods, Carrier has agreed to carry the goods at that higher value and Shipper has agreed to pay increased freight with respect to such higher declaration, in which event Carrier's liability shall be the lesser of the actual cost to repair, replace and/or deliver such goods or the higher value so declared and agreed. Carrier shall not be liable to Shipper or any other party claiming with respect to the goods, whether for loss, delay, shortage, misdelivery, failure to deliver or otherwise, or in tort, contract or upon any other theory, other than as set forth herein, and Shipper agrees to indemnify and hold harmless (including legal fees and costs) Carrier of and from any loss, damage, expense, liability, claim and/or suit arising out of or in any fashion relating to the goods other than as specifically allocated to Carrier herein.
(d). Delivery in Good Condition. Delivery of the goods without written notification of damage on the face of the air waybill or the delivery receipt shall be prima facie evidence that the goods have been delivered in the same good order, count and condition as when received by Carrier.
12. Claims. As a condition precedent to recovery against Carrier:
(a). The goods must be carefully inspected immediately upon delivery and any loss or damage then evident must be noted on Carrier's copy of the air waybill or on the delivery receipt.
(b). In the event of loss or damage which is not ascertainable at delivery, written notice of loss, damage, shortage, etc. involving the goods must be given to Carrier within seven (7) days following delivery, or in the case of perishables verbally within twenty four (24) hours and written follow-up within forty eight (48) hours from delivery, after which time it shall be conclusively presumed that the goods were delivered in the same condition as when received.
(c). In the event of goods which have been delayed, lost or otherwise not delivered, Carrier must be given written notice of said delay, loss or failure to deliver within fifteen (15) days from the date upon which the goods should have been delivered.
(d). Carrier shall have a reasonable opportunity to inspect the goods, including their packing or packaging, in the same condition as when delivered and before any alteration or destruction.
(e). A written claim for loss or damage specifying the particulars thereof must be filed with Carrier within ninety (90) days of the date of delivery or date on which goods should have been delivered.
(f). Suit against Carrier must be filed within one (1) year following the date of delivery of the goods, date on which the goods should have been delivered, or date from which Carrier disallowed the claim or pertinent part of the claim, whichever is later.
(g). Notwithstanding the foregoing, there shall be no recovery from Carrier until the freight and all other sums due Carrier have been paid in full.
13. Extension of Benefits. All limitations upon, and exceptions and defenses to, liability granted to Carrier pursuant to this agreement shall be deemed automatically extended to all parent, subsidiary and affiliated entities and all subcontractors of Carrier, and the members, directors, officers, employees and agents of each of the foregoing.
14. Law and Forum. Any lawsuit relating to the goods, the transportation services and/or this agreement must be filed in the federal court located in Seattle, Washington, United States. The parties consent to the exclusive jurisdiction of said court, and agree that the prevailing party shall be entitled to recover its legal fees and costs.
15. Tariff Availability. Carrier's tariff, incorporated herein, is available at any Carrier office during regular working hours, and is also available on Carrier's website at the following address: www.laf.lynden.com.
Notice
concerning carriers’ limitation of liability –
If the carriage involves an ultimate destination or stop in a country
other than the country of departure, the Warsaw Convention may be
applicable and the convention governs and in most cases limits the
liability of the carrier in respect of loss damage or delay to cargo
to 250 French Gold Francs per Kilogramme.
Unless a higher value is declared in advance by the shipper
and a supplementary charge paid if required, the liability limit of
250 French Gold Francs per Kilogramme is approximately US $20.00 per
Kilogramme on the basis of US $42.22 per ounce of gold.
Conditions
of Contract
1)
As used in this contract “Carrier” means all air carriers that carry
or undertake to carry the goods hereunder or perform any other services
incidental to such air carriage.
“Warsaw Convention” means the Convention for the Unification
of certain rules relating to International carriage by Air, signed
at Warsaw, 12 October 1929, or that Convention as amended at the Hague,
28 September 1955, whichever may be applicable and “French gold francs”
means francs consisting of 651/2 milligrams of gold with a fineness
of nine hundred thousandths.
2)
a)
Carriage hereunder is subject to the rules relating to liability established
by the Warsaw Convention unless such carriage is not “international
carriage” as defined by the Convention.
b)
To the extent not in conflict with the foregoing carriage hereunder
and other services performed by each Carrier are subject to:
i)
Applicable laws (including national laws implementing the Convention)
government regulations, orders and requirements
ii)
Provisions herein set forth, and
iii)
Applicable tariffs, rules, conditions of carriage regulations and
timetables (but not the times of departure and arrival therein) of
such carrier, which are made part hereof and which may be inspected
at any of its offices and at airports from which it operates regular
services. In transportation between a place in the United
States or Canada and any place outside thereof the applicable tariffs
are the tariffs in force in those countries.
3)
The first Carrier’s name may be abbreviated on the face hereof, the
full name and its abbreviation being set forth in such Carrier’s tariffs,
conditions of carriage, regulations and timetables. The first Carrier’s address is the airport of departure shown on
the face hereof. The agreed
stopping places (which may be altered by Carrier in case of necessity)
are those places, except the place of departure and the place of destination
set forth on the face hereof or shown in Carrier’s timetables as scheduled
stopping places for the route. Carriage
to be performed hereunder by several successive carriers is regarded
as a single operation.
4)
Except as otherwise provided in Carrier’s tariff or conditions of
carriage. In carriage to which
the Warsaw Convention doe not apply, Carrier’s liability shall not
exceed US $20.00 or the equivalent per kilogramme of goods lost, damaged
or delayed, unless a higher value is declared by the shipper and a
supplementary charge paid.
5)
If the sum entered on the face of the Air Waybill as “Declared Value
for Carriage” represents an amount in excess of the applicable limits
of liability referred to in the above Notice and in these Conditions
and if the shipper has paid any supplemental charge that may be required
by the Carrier’s tariff, conditions of carriage or regulations, this
shall constitute a special declaration of value and in this case Carrier’s
limit of liability shall be the sum so declared.
Payment of claims shall be subject to proof of actual damages
suffered.
6)
In cases of loss, damage or delay of part of the consignment, the
weight to be taken into account in determining Carrier’s limit of
liability shall be only the weight of the package(s) concerned.
NOTE: Notwithstanding any other provision for foreign
air transportation as defined in the U.S. Federal Aviation Act, as
amended. In case of loss or
damage or delay of a shipment or part thereof, the weight to be used
in determining the carrier’s limit of liability shall be the weight,
which is used (or a pro rata share in the case of a part shipment
loss, damage or delay) to determine the transportation charge for
such shipment.
7)
Any exclusion or limitation of liability applicable to Carrier shall
apply to and be for the benefit of Carrier’s agents, servants and
representatives and any person whose aircraft is used by Carrier for
carriage and its agents, servants and representatives.
For purposes of this provision Carrier acts herein as agent
for all such persons.
8)
a)
Carrier undertakes to complete the carriage hereunder with reasonable
dispatch. Carrier may substitute
alternate carriers or aircraft and may without notice and with due
regard to the interests of the shipper substitute other means of transportation.
Carrier is authorized to select the routing or to change or
deviate from the routing shown on the face hereof.
This subparagraph is not applicable to/from USA.
b)
Carrier undertakes to complete the carriage hereunder with reasonable
dispatch. Except within USA
where carrier tariffs will apply.
Carrier may substitute alternate carriers or aircraft and may
without notice and with due regard to the interests of the shipper
substitute other means of transportation.
Carrier is authorized to select the routing or to change or
deviate from the routing shown on the face hereof.
This subparagraph is applicable only to/from USA.
9)
Subject to conditions herein the Carrier shall be liable for the goods
during the period they are in its charge or the charge of its agent.
10)
a)
Except when the Carrier has extended credit to the consignee without
the written consent of the shipper, the shipper guarantees payment
of all charges for carriage due in accordance with Carrier’s tariffs,
conditions of carriage and related regulations applicable laws (including
national laws implementing the Convention) government regulations
orders and requirements.
b)
When no part of the consignment is delivered, a claim with respect
to such consignment will be entertained even though transportation
charges thereon are unpaid.
11)
Notice of arrival of goods will be given promptly to the consignee
or to the person indicated on the face thereof as the person to be
notified. On arrival of the goods at the place of destination,
subject to the acceptance of other instructions from the consignor
prior to arrival of the goods at the place of destination, delivery
will be made to or in accordance with the instructions of the consignee. If the consignee declines to accept the goods
or cannot be communicated with, disposition will be in accordance
with instructions of the consignor.
12)
a)
The person entitled to delivery must make a complaint to the Carrier
in writing in the case
i)
of visible damage to the goods, immediately after discovery of the
damage and at the latest within 14 days from receipt of the goods.
ii)
of other damage to the goods, within 14 days from the date of receipt
of the goods
iii)
of delay, within 21 days of the date the goods are placed at his disposal,
and
iv)
of non-delivery of the goods within 120 days from the date of the
issue of the Air Waybill.
b)
For the purpose of subparagraph (a) above complaint in writing may
be made to the Carrier whose Air Waybill was used, or to the first
Carrier or to the last Carrier or to the Carrier who performed the
transportation during which the loss, damage or delay took place:
c)
Any rights to damage against carrier shall be extinguished unless
an action is brought within two years from the date of arrival at
destination, or from the date on which the aircraft ought to have
arrived, or from the date on which the transportation stopped.
13)
The shipper shall comply with all applicable laws, and government
regulations of any country to, from, through or over which the goods
may be carried, including those relating to the packing, carriage
or delivery of the goods and shall furnish such information and attach
such documents to the Air Waybill as may be necessary to comply with
such laws and regulations. Carrier is not liable to the shipper for loss
or expense due to the shipper’s failure to comply with this provision.
14)
No agent, servant or representative of Carrier has authority to alter,
modify or waive any provisions of this contract.
15)
On request and if the appropriate premium is paid and the fact recorded
on the face hereof, the goods covered by this Air Waybill are insured
under an open policy for the amount requested as set out on the face
hereof (recovery being limited to the actual value of goods lost or
damaged provided that such amount does not exceed the insured value). The insurance is subject to the terms, conditions and coverage (from
which certain risks are excluded) of the open policy, which is available
for inspection at an office of the issuing Carrier by the interested
party. Claim under such policy
must be reported immediately to an office of Carrier.
SHIPPERS
SECURITY NOTIFICATION (KS)
“Cargo
items tendered for air transportation are subject to aviation security
controls by air carriers and when appropriate, other government regulations. Copies of all relevant shipping documents showing the cargo’s consignee,
consignor, description and other relevant data will be retained on
file until the cargo completes its air transportation”.
Received in apparent good order and condition unless otherwise stated
herein, for shipment on board the ocean vessel mentioned herein or on
board the feeder vessel or other means of transportation (rail or truck)
if named herein the goods or packages or containers said to contain
goods, hereinafter call “the Goods”, specified herein for carriage from
the port of loading named herein or place of receipt if mentioned herein,
on a voyage as described and agreed by the Bill of lading and discharge
at the port of discharge named herein or delivery at the place of delivery
if mentioned herein, such carriage, discharge or delivery being always
subject to the exceptions, limitations, conditions and liberties hereinafter
agreed, in the order and condition at the port of discharge or place
of delivery if named as the case may be, for delivery unto the Consignee
mentioned herein or to his or their assigns where the Carrier’s responsibilities
shall in all cases and all circumstances whatsoever finally cease.
Full
freight hereunder shall be due and payable by the shipper in cash
without deduction on receipt of the Goods or part thereof by the Carrier
for shipment and shall be deemed to have been fully earned upon such
receipt of goods. All charges due hereunder together
with freight shall be due from and payable by the Shipper, Consignee,
Owner of the Goods or Holder of the Bill of Lading (who shall be jointly
and severally liable to the Carrier therefore) on demand at such port
or place as the Carrier may require, vessel or other means of transportation
or cargo lost or not lost from any cause whatsoever.
The
freight stated herein to be paid or payable has been calculated and
based on the particulars of the Goods furnished by the Shipper to
the Carrier. The Carrier shall be entitled at any time to
open and re-classify or reweigh or re-measure or re-value any goods,
and freight shall be paid on the proper classification or the excess
weight or measurement or value if any) as the case may be so ascertained. The expenses of and incidental to reclassifying
or re-weighing or re-measuring or re-valueing shall be borne by the
Carrier if the classification or weight or measurement or value as
furnished by the Shipper is found to be correct but otherwise such
expenses shall be considered as freight and shall be borne and paid
by the Shipper, Consignee, Owner of the Goods and/or Holder of the
Bill of Lading. The Shipper shall, if required by
the Carrier so to do, furnish forthwith on demand to the Carrier the
invoice or true copy thereof relating to the Goods.
Agents
signing the Bill of Lading on behalf of the Company or Line by whom
the Bill of Lading is issued have only the limited authority at common
law of a vessel’s master signing a Bill of Lading.
Notwithstanding
the heading “Combined Transport Bill of Lading”, the provision set
out and referred to in this document shall also apply if the transport
as described on the face of the Bill of Lading is performed by one
mode of transport only.
THE TERMS OF THE BILL OF LADING ARE HEREBY MUTUALLY
AGREED UPON AS FOLLOWS:
The
Bill of Lading shall have effect subject to the provision of the “Carriage
of Goods by Sea Act 1936” (“COGSA”) of the United States of America
in respect of carriage of goods from ports in the United States.
Otherwise the Bill of Lading shall have effect subject to the
provision of the
Hague
Rules contained in the International Convention for Unification of
certain Rules relating to Bills of Lading, dated Brussels, August
25, 1924, as enacted in the country of shipment, or the said Hague
Rules as amended by Protocol signed at Brussels on the 23rd
February, 1968 (the Hague Visby Rules), or if no such enactment is
compulsorily applicable, the provision of said convention in its unamended
form shall apply. If any provision
of the Bill of Lading be invalid under COSGSA or any other law that
is compulsorily applicable, such provision shall, to the extent of
such invalidity, but no further, be null and void.
1.
DEFINITIONS.
“Carrier”
means the Owners or dimise Charterer of the ocean vessel on
whose behalf the Bill of has been issued.
“Goods”
means the cargo accepted from the Shipper and includes any
Container not supplied by or on behalf of the Carrier.
“Container”
includes any container, trailer, transportable tank, flat or
pallet.
“Merchant”
includes the Consignor, Shipper, Holder, Consignee, the receiver
of the Goods, any person including any Corporation, Company or other
legal entity owning or entitled to the possession of the Goods or
the Bill of Lading and anyone acting on behalf of any such persons.
“Holder”
means any person for the time being in possession of the Bill
of Lading to whom the property in the Goods has passed on or by reason
of the consignment of the Goods of the endorsement of the Bill of
Lading or otherwise.
“The Internal Law
of a State” Shall be deemed
to exclude all principles of private international law applied by
such State.
2.
CARRIER’S TARIFF.
The
terms of the Carrier’s applicable Tariff are incorporated herein. Copies of the relevant provisions of the applicable Tariff are obtainable
from the Carrier upon request. In
the case of inconsistency between the Bill of Lading and the applicable
Tariff, the Bill of Lading shall prevail.
3.
SUB-CONTRACTING.
(1)
The Carrier shall be entitled to sub-contract on any terms the whole
or any part of the carriage, loading, unloading, storing, warehousing,
handling and any and all duties whatsoever undertaken by the Carrier
in relation to the Goods.
(2)
The Merchant undertakes that no claim or allegation shall be made
against any servant, agent, stevedore or sub-contractor of the Carrier
which imposes or attempts to impose upon any of them or any vessel
owned or chartered by any of them and liability whatsoever, in connection
with the Goods, and, if any such claim or allegation should nevertheless
be made to indemnify the Carrier against all consequences thereof. Without prejudice to the foregoing, every such
servant, agent, stevedore and subcontractor shall have the benefit
of all provision herein benefiting the Carrier as if such provisions
were expressly for their benefit, and all limitations of and exonerations
from liability provided to the Carrier by law and by the terms hereof
shall be available to them, and, in entering into this contract the
Carrier, to the extent of those provisions, does so not only on its
own behalf, but also as agent and trustee for such servants, agents,
stevedores and sub-contractors.
(3)
The expression “subcontractor” in this clause shall include direct
and indirect subcontractors and their respective servants and agents.
4.
CARRIER’S RESPONSIBILITY.
The
Carrier undertakes responsibility from the place of receipt if named
herein or from the port of loading to the port of discharge or the
place of delivery if named herein as follows:
Where
loss or damage has occurred between the time of receipt of the Goods
by the Carrier at the port of loading and the time of delivery by
the Carrier at the port of discharge, or during any prior or subsequent
period of carriage by water, or where it cannot be established where
the loss or damage occurred, the liability of the Carrier shall be
determined in accordance with the provisions of the International
Convention for the Unification of Certain Rules relating to Bills
of Lading dated Brussels the 25th August, 1924, or where
compulsorily applicable the Carriage of Goods by Sea Act of the United
States 1936 or of like Statues of other countries, including any national
law giving effect to the Hague Visby Rules.
If
it can be proved that the loss or damage occurred while the Goods
were in the custody of the inland carrier the liability of the Carrier
and the limitation thereof shall be determined in accordance with
the inland carrier’s contracts of carriage and tariffs, or in the
absence of such contracts or tariffs, in accordance with the internal
law of the State where the loss or damage occurred.
In
no event shall the liability of the carrier exceed the amount of compensation
payable under Clause 5.
The
Carrier shall be entitled to the full benefit of and right to all
limitations of or exemptions from liability authorized by any provision
of Section 4281 to 4289 of the Revised Statutes of the United States
of America and amendments thereto and of any other provision of the
laws of the United States or of any other country whose laws shall
apply.
Nothing
in the Bill of Lading, expressed or implied, shall be deemed to waive
or operate to deprive the Carrier of or lessen the benefits of any
such rights, immunities, limitations or exemptions.
5.
THE AMOUNT OF COMPENSATION.
(1)
When the Carrier is liable for compensation in respect of loss of
or damage to the Goods, such compensation shall be calculated by reference
to the invoice value of the Goods plus freight and insurance if paid.
(2)
In no event shall the Carrier be or become liable for any loss of
or damage to or in connection with the Goods in an amount exceeding
the limit per package or unit (meaning the unit in which the cargo
is shipped; container stuffed by the Merchant to be considered as
a unit) provided for by the United States Carriage of Goods by Sea
Act, Section 4 (5) or by any similar act in force according to the
provisions of clause 4 unless the nature and value of such goods have
been declared by the Shipper before shipment, agreed by the Carrier,
inserted in the Bill of Lading and moreover freight paid on “ad valorem”
basis. Whenever the value
of the Goods is less than such an amount this value in the calculation
and the adjustment of claims for which the Carrier may be liable shall
for the purpose of avoiding uncertainties and difficulties in fixing
values be deemed to be the invoice value plus freight and insurance,
if paid, irrespective of whether any other value is greater or less.
(3)
Higher compensation may be claimed only when, with the consent of
the Carrier, the value of the Goods declared by the Shipper which
exceeds the limits laid down in this clause has been stated in the
Bill of Lading. In that case the amount of the declared value
shall be substituted for that limit.
Any partial loss or damage shall be adjusted pro rata on the
basis of such declared value.
6.
GENERAL.
(1)
The Carrier does not undertake that the Goods shall arrive at the
port of discharge or the place of delivery at any particular time
or to meet any particular market or use and save as is provided in
clause 4 the Carrier shall in no circumstances be liable for any direct,
indirect or consequential loss or damage caused by delay.
If the Carrier should nevertheless be held legally liable for
any such direct or indirect or consequential loss or damage caused
by delay, such liability shall in no event exceed the freight paid
for the transport covered by the Bill of Lading.
(2)
Save as is otherwise provided herein, the Carrier shal in no circumstances
be liable for direct or indirect or consequential loss or damage arising
from any other cause.
(3)
The terms of the Bill of Lading shall govern the responsibility of
the Carrier in connection with or arising out of the supplying of
a Container to the Merchant whether before or after the Goods are
received by the Carrier for transportation or delivered to the Merchant.
7.
NOTICE OF LOSS, TIME BAR.
Unless
notice of loss or damage and the general nature of such loss or damage
be given in writing to the Carrier or his agents at the port of discharge
or the place of delivery as the case may be before or at the time
of removal of the goods in to the custody of the merchant such removal
shall be prima facie evidence of the delivery by the Carrier of the
Goods as described in the Bill of Lading. If the loss or damage is not apparent, then
notice must be given within three days of the delivery. In any event, the Carrier shall be discharged
from any liability unless suit is brought within one year after delivery
of the goods or the date when the Goods should have been delivered.
8.
DEFENCES AND LIMITS FOR THE CARRIER.
The
defenses and limits of liability provided for in the Bill of Lading
shall apply in any action against the Carrier for loss of or damage
to the Goods whether the action be founded in contract or in tort.
9.
SHIPPER-PACKED CONTAINERS.
(1)
If a container has not been filled,
packed, stuffed or loaded by the Carrier, the Carrier shall not be
liable for loss of or damage to the contents and the Merchant shall
indemnify the Carrier against any injury, loss, damage, liability
or expense incurred by the Carrier if such injury, loss, damage, liability
or expense has been caused by: -
(a)
the manner in which the Container has been filled, packed, stuffed
or loaded; or
(b)
the unsuitability of the contents for carriage in Containers; or
(c)
the unsuitability or defective condition of the Container which would
have been apparent upon reasonable inspection by the Merchant at or
prior to the time the Container was filled, packed, stuffed or loaded.
(2)
If a Container which has not been filled, packed, stuffed or loaded
by the Carrier is delivered by the Carrier with seals intact, such
delivery shall be deemed as full and complete performance of the Carrier’s
obligation hereunder and the Carrier shall not be liable for any loss
of or damage to the contents of the Container.
(3)
The Shipper shall inspect Containers before stuffing them and the
use of the containers shall be prima facie evidence of their being
sound and suitable for use.
10.
INSPECTION OF GOODS.
The
Carrier shall be entitled, but under no obligation, to open any Package
or Container at any time and to inspect the contents.
If it thereupon appears that the contents or any part thereof
cannot safely or properly be carried or carried further, either at
all or without incurring any additional expense or taking any measures
in relation to such Package or Container or its contents or any part
thereof, the Carrier may abandon the transportation thereof and/or
take any measures and/or incur any reasonable additional expense to
carry or to continue the carriage or to store the same ashore or afloat
under cover or in the open, at any place, which storage shall be deemed
to constitute due delivery under the Bill of Lading. The Merchant shall indemnify the Carrier against any reasonable
additional expense so incurred.
11.
DESCRIPTION OF GOODS.
No
representation is made by the Carrier as to the weight, contents,
measure, quantity, quality, description, condition, marks numbers
or value of the Goods and the Carrier shall be under no responsibility
whatsoever in respect of such description or particulars.
12.
SHIPPER’S RESPONSIBILITY.
(1)
The shipper warrants to the Carrier that the particulars relating
to the Goods as set out overleaf have been checked by the Shipper
on receipt of the Bill of Lading and that such particulars and any
other particulars furnished by or on behalf of the Shipper are correct.
(2)
The Shipper shall indemnify the Carrier against all loss, damage or
expenses arising or resulting from inaccuracies or inadequacy of such
particulars.
13.
FREIGHT AND CHARGES.
(1)
The Merchant’s attention is drawn to the stipulations concerning currency
in which the freight and charges are to be paid, rate of exchange,
devaluation and other contingencies relative to freight and charges
in the applicable tariff.
(2)
The freight has been calculated on the basis of particulars furnished
by or on behalf of the Shipper. The
Carrier may at any time open an Container or other Package or Unit
in order to re-weight, re-measure, reclassify or re-value the contents,
and if the particulars furnished by or on behalf of the Shipper are
incorrect, it is agreed that a sum equal to the difference between
the correct freight and the freight charged shall be payable by the
Merchant to the Carrier.
14.
LIEN.
(1)
The Carrier shall have a lien on the Goods and any documents relating
thereto for all sums payable to the Carrier under this contract and
for general average contributions to whomsoever due and for the cost
of recovering the same, and for that purpose shall have the right
to sell the Goods by Public Auction or private treaty without notice
to the Merchant. If on sale of the Goods the proceeds fail to
cover the amount due and the cost incurred, the Carrier shall be entitled
to recover the deficit from the Merchant.
(2)
If the Goods are unclaimed during a reasonable time, or whenever in
the Carrier’s opinion the
Goods will become deteriorated, decayed or worthless, the Carrier
may, at his discretion and subject to his lien and without any responsibility
attaching to him, sell, abandon or otherwise dispose of the Goods
at the sole risk and expense of the Merchant.
15.
OPTIONAL STOWAGE, DECK CARGO AND LIVESTOCK.
(1)
The Goods may be stowed by the Carrier in Containers or similar articles
of transport used to consolidate goods.
(2)
Goods stowed in Containers, whether by the Carrier or by the Merchant,
may be carrier on deck or under deck without notice to the Merchant
unless on the face thereof it is specifically stipulated that the
Containers will be carried under deck, and if carried on deck, the
Carrier shall not be required to note, mark or stamp on the Bill of
Lading any statement of such on deck carriage.
Such goods (other that livestock) whether carried on deck or
under deck and whether or not stated to be carried on deck shall participate
in general average and shall be deemed to be within the definition
of Goods for the purpose of the Hague Rules or similar provision of
any other Act which may be applicable.
(3)
Goods (not being goods stowed in Container other than flats or pallets)
which are stated herein to be carried on deck and livestock, whether
or not carrier on deck, are carried without responsibility on the
part of the Carrier for loss or damage of whatsoever nature arising
during carriage by sea whether caused by unseaworthiness or negligence
or any other cause whatsoever.
16.
METHODS AND ROUTES OF TRANSPORTATION.
(1)
The Carrier may at any time and without notice to the Merchant –
(a)
use any means of transport or storage whatsoever;
(b)
transfer the Goods from one conveyance to another including trans-shipping
or carrying the same on another vessel than the vessel named overleaf
or on any other means of transport whatsoever and even though trans-shipment
or forwarding of the Goods may not have been contemplated or provided
for herein;
(c)
sail without pilots, proceed via any route, proceed to, return to
and stay at any port or place whatsoever (including the port of loading
herein provided) in any order in or out of the route or in a contrary
direction to or beyond the port of discharge once or oftener for bunkering
or loading or discharging cargo or embarking or disembarking any person(s)
whether in connection with the present a prior or subsequent voyage
or any other purpose whatsoever, and before giving a delivery of the
Goods at the port of discharge or the place of delivery herein provided
and with liberties as aforesaid leave and then return to and discharge
the Goods at such port, tow or be towed, make trial trips, adjust
compasses, or repair or drydock, with or without cargo onboard;
(d)
load and unload the Goods at any port or place (whether or not any
such port is named overleaf as the Port of Loading or Port of Discharge)
and store the Goods at any such port or place;
(e)
comply with any orders or recommendations given by any government
or authority or any person or body or purporting to act as or on behalf
of such government or authority or having under the terms of the insurance
on the conveyance employed by the Carrier the right to give orders
or directions.
(2)
Anything done or not done in accordance with sub-clause (1) or any
delay arising therefrom shall be deemed to be within the contractual
carriage and shall not be a deviation.
17.
MATTERS AFFECTING PERFORMANCE.
(1)
If at any time the performance of the contract evidenced by the Bill
of Lading is or is likely to be affected by any hindrance, risk, delay,
difficulty or disadvantage of whatsoever kind which cannot be avoided
by the exercise of reasonable endeavours, the Carrier (whether or
not the transport has commenced) may without notice to the Merchant
treat the performance of this contract as terminated and place the
Goods or any part of them at the Merchant’s disposal at any port or
place whatsoever which the Carrier or Master may consider safe and
advisable in the circumstances, whereupon the responsibility of the
Carrier in respect of such goods shall cease. The Carrier shall nevertheless be entitled
to full freight and charges on Goods received for transportation,
and the Merchant shall pay any additional costs of carriage to any
delivery and storage at such port or place.
(2)
The circumstances referred to in sub-clause (1) above shall include,
but shall not be limited to, those caused by the existence or apprehension
of war declared or undeclared, hostilities, warlike or belligerent
acts or operations, riots, civil commotions or other disturbances,
closure of , obstacles in or danger to any canal; blockade of port
or place of restrictions; strikes, lockouts or other labour troubles
whether partial or general and whether or not involving employees
of the Carrier or his subcontractors; congestion of port, wharf, sea
terminal or any other place; shortage, absence or obstacles of labour
or facilities for loading ,discharge, delivery or other handling of
the Goods; epidemics or diseases; bad weather, shallow water, ice,
landslide or other obstacle in navigation or haulage.
18.
REFRIGERATED CARGO.
(1)
The Merchant undertakes not to tender for transportation any Goods
which require refrigeration without previously giving written notice
of their nature and particular temperature range to be maintained
and in case of a refrigerated Container packed by or on behalf of
the Merchant further undertakes that the Goods have been properly
stowed in the Container and that its thermostatic controls have been
adequately set by him before receipt of the Goods by the Carrier.
If
the above requirements are not complied with, the Carrier shall not
be liable for any loss of or damage to the Goods howsoever arising.
(2)
The carrier shall not be liable for any loss of or damage to the Goods
arising from latent defects, derangement, breakdown, stoppage of the
refrigerating machinery, plant, insulation and/or any apparatus of
the Container, vessel, conveyance and any other facilities whatsoever
provided that the Carrier shall before or at the beginning of the
transport exercise due diligence to maintain the refrigerated Container
in an efficient state.
19.
DANGEROUS GOODS.
(1)
The Merchant undertakes not to tender for transportation any Goods
which are of a dangerous, inflammable, radioactive or damaging nature
without previously giving written notice of their nature to the Carrier
and marking the Goods and the Container or other covering on the outside
as required by any laws or regulations which may be applicable during
the carriage. The Carrier
or the Master may however, in their absolute discretion reject any
such cargo.
(2)
If the requirements of sub-clause (1) are not complied with the Goods
may at any time or place be unloaded, destroyed, or rendered harmless
without compensation and the Merchant shall indemnify the Carrier
against all loss, damage or expense arising out of the Goods being
tendered for transportation or handled or carrier by the Carrier. Further the Carrier shall be under no liability to make any general
average contribution in respect of such Goods.
(3)
If the Goods of a dangerous, inflammable, radioactive or damaging
nature, which were tendered in compliance with sub-clause (1) shall
become a danger to the vessel, cargo or any other property or person,
such goods may in like manner be unloaded, destroyed or rendered harmless
without compensation and the Merchant shall indemnify the Carrier
against all loss, damage or expense which the Carrier could not avoid
by the exercise of reasonable diligence but incurred as a result of
the carriage of such Goods.
20.
REGULATIONS RELATING TO GOODS.
The
Merchant shall comply with all regulations or requirements of Customs,
port and other authorities, and shall bear and pay all duties, taxes,
fines, imposts, expenses or losses incurred or suffered by reason
thereof or by reason of any illegal, incorrect or insufficient marking,
numbering or addressing of the Goods, and indemnify the Carrier in
respect thereof.
21.
NOTIFICATION AND DELIVERY.
(1)
Any mention in the Bill of Lading of parties to be notified of the
arrival of the Goods is solely for information of the Carrier, and
failure to give such notification shall not involve the Carrier in
any liability nor relieve the Merchant of any obligation hereunder.
(2)
The Merchant shall take delivery of the Goods within the time provided
for in the Carrier’s applicable Tariff.
(3)
If the Merchant fails to take delivery of the Goods or part of them
in accordance with the Bill of Lading, the Carrier may without notice
unstow the Goods or that part thereof and/or store the Goods or that
part thereof ashore, afloat, in the open or under cover. Such storage shall constitute due delivery hereunder, and thereupon
all liability whatsoever of the Carrier in respect of the Goods or
that part thereof shall cease.
(4)
The Merchant’s attention is drawn to the stipulation concerning free
storage time and demurrage contained in the Carrier’s applicable Tariff,
which is incorporated in the Bill of Lading.
(5)
The Carrier may in his absolute discretion receive the Goods as Full
Container Load and deliver them as Less that Full Container Load and/or
as split delivery of the Goods to more than one receiver. In such event the Carrier shall not be liable
for any shortage, loss, damage or discrepancies of the Goods, which
are found upon unpacking of the Container.
(6)
The Carrier may in his absolute discretion receive the Goods as Less
than Full Container Load and deliver them as Full Container Load,
in such event the Carrier shall not be liable for any shortage, loss,
damage or discrepancies of the Goods, which were not apparent at the
time of such delivery, provided that he shall have exercised ordinary
care in packing the Containers.
22.
BOTH-TO-BLAME COLLISION CLAUSE.
If
the carrying ship comes into collision with another ship as a result
of negligence of the other ship and any act, neglect or default in
the navigation or the management of the carrying ship, the Merchant
undertakes to pay the Carrier, or default in the navigation or the
management of the carrying ship, the Merchant undertakes to pay the
Carrier, or, where the Carrier is not the owner and in possession
of the carrying ship, to pay to the Carrier as trustee for the owner
and/or demise charterer of the carrying ship, a sum sufficient to
indemnify the Carrier and/or the owner and/or demise charterer of
the carrying ship against all loss or liability to the other or non-carrying
ship or her owners insofar as such loss or liability represents loss
of or damage to, or any claim whatsoever of the Merchant, paid or
payable by the other or non-carrying ship or her owners to the Merchant
and set off, recouped or recovered by the other or non-carrying ship
or her owners as part of their claim against the carrying ship or
her owner or demise charter or the Carrier.
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